HomeMy WebLinkAbout1987-1850.Boone et al.93-08-05ONTARIO i EMPLOYtiSDE LA COURONNE CROWNEMP‘L .LS DEL’ONTARIO (.’ GRIEVANCE C$lMMISSION DE I SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNOAS STREET WEST, SUITE 2100, TORONKJ, ONARID. M5G TZB Ti=LEP”ONE/T~LAwmJ~~ ,” 16, 326- ,388 180, FIVE DUNOAS OUEST, EwRf?A” 2100, TORONTO ,ONT*R,O,. M5G IZB FAcSIMILE/TELs3xFE : ,26- ,396 ,416, 1213/87, 1909/87, 2516/87, 755/88, 802/88;61/89, 84/89, X26/89, 1320,'89, 215/91, 246/.91, 434/91, 435/91, 437/91, BETWEEN Grievor IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Boone et al) -, and - The Crown in Right of Ontario (Ministry of Health) BEFORE: M. Gorsky I. Thomson A. Stapleton . . Vice-Chairperson Member Member FOR THE JrNION B. Rutherford Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE EMPLOYER L. McIntosh Counsel Crown Law Office Civil Ministry of the Attorney General HEARING October 17, 1989 February 12, 13., 1990 May 17, 31, 1990 June 15, 25, 1990 July 16, 1990 August 17, 1990 February 11, 12, .18, 19, 1991 April 23, 1991 May 31, 1991 June 11, 1991 December 6, 13, 19, 1991 Employer DECISION The grievances before us were filed in 1987 and 1988 bi most of the Rehabilitation Officers in the Province of Ontario employed by the Ministry of Health in Ontario at the following psychiatric hospitals: Brockville, St. Thomas, Whitby, Penetanguishene, Queen Street Mental Health Centre (Toronto), Hamilton, Lakehead (Thunder Bay) and North Bay. The presentation of evidence in this case took 19 days, and counsel filed written submissions totalling 144 pages. In order to do justice to the enormous effort put into the preparation and presentation of the case, our decision has reached a commensurate length. It might have been possible to merely note the fact that the Board, while it appreciated the efforts of the parties, could merely acknowledge them in rendering its decision. While the Board is endeavoring to administer justice, it is also engaged in a practical exercise. But for. certain exceptional circumstances affecting the case before us, we would have had to considerably shorten this decision. The Grievors, in this case, have raised certain fundamental questions which require our decision to be somewhat more elaborate than would usually by the case. This case also, raises some fundamental questions relating to whether the conventional method of dealing with classification cases before the Board can do justice between the parties except in the sense that there is a "winner, " while failing to effectively deal with the underlying - 2 problems that led to the filing of the grievances in the first place. It is evident that events have overtaken the process, and future awards will be much shorter. The Rehabilitation Officers employed at the two remaining psychiatric hospitals at Kingston and London do not form part of this grievance.. Rehabilitation Officers employed by the Ministry of Health at the London Psychiatric Hospital did not file their grievances in time to join this hearing, while the Kingston Rehabilitation Officers did file their ~grievances prior to the grievances in the case before us: see OPSEU dthehof an 27/84 (hereafter "Wallace and Jackson"). The grievances raise the issue as to whether the Grievers are properly classified as Rehabilitation Officer 2 Health ("R02"), and, if they are not, whether their duties and responsibilities place them in the classification of Social Worker 2 ("SW2"). The class standard with respect to the Social Worker series, including the preamble (Exhibit 2) is annexed hereto as Appendix 1. The class standard with respect to the Rehabilitation Officer class series (Exhibit 3) is annexed.hereto as Appendix 2.~ 3 The Union made three alternative submissions in support of its position: i 1. That the issues in this case have already been decided in Wallace and 'Jackson, and that the Employer has not established that the grievances before,us represent "exceptional circumstances" to those found in that case, nor has it demonstrated that WB Jackson was "manifestly wrong." It was submitted that the Grievers perform substantially the same duties as the "usage witnesses" in that case and of Messrs. Wallace and Jackson. 2. That the class standard for R02 does not accurately describe the Grievors'.duties and responsibilities, whereas the SW2 class standard does. 3. In the alternative, if the Board finds that the Grievers' duties and responsibilities do not best fit the SW2 classification and are not within the R02 classification, a l&rry order is requested. 4. The Employer has altered its classification scheme by classifying two persons, Lee Haines and Jim Rodgers as SW2'and that the Grievers perform substantially the same duties and responsibilities as those "usage witnesses." Accordingly the Grievers should be classified as SW2. 4 The Union also submitted that the Grievers are entitled to retroactivity back to the date of the Wallace and JackEinn award because it was at this point that the Employer was put on notice that the Grievers were wrongly classified, and it has not suffered any prejudices from having the benefit of these employees at a lower cost. When the hearing first commenced, on Qctober 17, .1989,,,we were informed that all of the Grievor-s performed substantially the same duties and responsibilities and, by agreement. Ms. Olive Watts, who is employed at the Brockville facility, was put forward as the representative witness whose evidence was to apply to the cases of all of the Grievers, After Ms. Watts gave her evidence, we were informed that we would also be hearing brief evidence from representative witnesses from most of the other facilities, which was supposed to relate to minor administrative differences between the way each hospital administered patient treatment. The differences were said not to be differences "in substance regarding the Grievor-8' core functions and responsibilities or 'clinical' duties." The evidence of ,the representative Grievers from the other facilities was also to deal~with the extent of "supervision of the Grievors through the ward treatment teams, which [was said to be1 primarily 'clinical."' It was the Union's position that the "administrative" supervision: '... through the Vocational Rehabilitation Services Department structure differs among the hospitals" with the difference being insubstantial. 5 The Union's alternative position was that if differences in administrative supervision was found to be significant to the classification of the core duties and responsibilities of the Grievers, then it was significant that the Grievors employed at Lakehead and at Queen Street Mental Health Centre do not report to the Vocational Supervisor but to a Director, and that the traditional shortage of psychiatrists at Lakehead was indicative of the existence of less supervision in the case of the Grievers at that facility. It was also submitted that it was of significance that the Grievers at Brockville and St. Thomas were ~subject to administrative supervision by a person filling both the Vocational Supervisor and Director of Vocational Services positions ("that is wearing both .'hats'.") It was also submitted that the other Grievers' supervisors carried their ,own case loads and therefore performed similar duties to the Grievers. Counsel for the Union referred to the grievance of Mr. McKenna, the representative grievor from Hamilton Psychiatric Hospital, who "obviously possesses theoretical knowledge, including knowledge of the 'Anthony Model,' that allows him to put academic labels on his duties in rehabilitation techniques. Mr. McKenna, in cross-examination, acknowledged that he ,did not draw on his education in the performance of his duties, and it was submitted that his theoretical knowledge did not distinguish his work from that of the other Grievers for classification purposes, it being submitted that they all performed the same duties, with Mr. McKenna 6 furnishing the Board with definitions of many of those. duties (Exhibit 27). In the further alternative, the Union submitted that Mr. McKenna's use of his theoretical knowledge entitled h.im to classification as an SWZ. The Employer responded to the submissions of the Union as follows: 1. That the issues.in this case have not been decided by the Wallace and Jackson case. 2. That the. SW2 class standard does not properly describe the Grievers' position and that the R02 standard does. 3. The Grievers' duties and responsibilities were not substantially the same as that of Messrs. Haines and Rodgers. Counsel for the.Employer also submitted that if the grievances succeeds, the usual 20 day retroactivity rule should apply. At the outset of the hearing, the Chair informed counsel, as he had informed counsel in Wallace.and Jackson, that the Board's understanding of the Social Worker class series, and in particular the class standard with respect to SWZ, 'wo~uld benef,it from the receipt of evidence from qualified witnesses as to the meaning of some of the‘terms set out in that class standard. In many cases 7 the meaning of the words contained in a class standard'is self- evident and does not require further interpretation. The situation is different where such terms terms of art as "qualified social workers, I' "professional social work services," "psychosocial diagnosis, ' "principles, techniques, and methods of social work," "knowledge of diagnostic and treatment procedures utilised by related disciplines" are used. Although the Employer's credentialism policy would permit a person to be placed in the Social Worker class series without completing "undergraduate professional education" in a faculty of social work, an incumbent would have to provide "professional social work services" and to be able to "use one or more social work methods to assess, treat or prevent.the underlying cause of social dysfunctioning, both personal and environmental." They would also have to "develop and implement appropriate social treatment plans and evaluate the results," as those terms are used in the class standard. It is apparent that unless the terms are correctly defined, many positions, based on their duties and responsibilities, may, on first blush, appear to fall within the language of the standard. In the Wallace and Jackson case, the persons with whom the grievers Wallace and Jackson were compared, who were classified as SW2 (Mrs. Gander, Mrs. Segal, and Mr. Phillips) were all employed bye the Ministry of Community and Social Services and were either in the position of Rehabilitation Counsellor or Rehabil i Officer. It was the position of the Union, in that case .8 tation "that what the grievor-s did amounted to 'essentially the same thing' as the work performed by the three employees classified as SWZ." The. Board in W lla a found that the evidence established that there was a substantial similarity of duties and responsibilities between those of the grievers in that case and the three usage witnesses who were classified as SWZ. In the Wallace and Jackson case, which was based only on a usage argument, the Board found no evidence to demonstrate that the comparators classified as SW2 were carrying out their duties and responsibilities using skills and abilities dependent on a knowledge of the principles, techniques and methods of social work as well as the ability to apply them-in a work situation. That is, there was nothing to differentiate, in any significant way, from Messrs. Wallace and Jackson. The Board was clear in indicating its finding that: . . . no evidence concerning the ‘incorporation in their work, by Mrs. Gander, Mrs. Segal and .Mr. Phillips, of professional social service and rehabilitation ~principles normally associated with a graduate of a recognised university social work course or that of a related discipline. Mrs. Segal holds an MSW degree and there wasp no evidence to cause me to conclude that she employed her training at a level consistent with her academic attainments. Her evidence did not demonstrate that she was undervaluing the extent to which her job called upon her to utilize other than rudimentary social work skills. From her evidence, I would gather that there was no need 9 to employ her higher level social work skills associated with a graduate degree in social work, let alone an undergraduate degree. I emphasise, that in another case, the evidence of necessary professional understanding of social work theory and practice might unde,rmine the%Union position. Such evidence did not figure in thi,s case, except as we were asked to find its existence in the evidence presented. Upon examining the evidence, I cannot find a basis for so finding. In the result, in the Wallace and Jackson case, the Board found that the grievers did essentially what the comparator employees classified as Sw2 did. The Board was unable to differentiate the duties and responsibilities on the basis that those employees classified 'as sW2 did so employing the skills and knowledge that would Abe expected of a qualified social worker I providing professional social work services which was contrasted with the nature of the services provided ~by the grievers. Acknowledging the effect of the credentialism policy, the Board recogniied that the degree of expertise expected of qualified social workers who provide professional social work services to clients could be carried out by persons who had attained the ~necessary skills and knowledge associated with a qualified social worker other than through graduation from a professional school of social work. The Union's first witness was Olive Watts, who commenced giving her evidence on Ott 17. 1989, her evidence being as follows: 10 1. According to her r&.ume (Exhibit 5). she has been a Vocational Rehabilitation Counsellor at the Brockville Psychiatric Hospital since 1975~. 2. She is responsible for the Elmgrove Unit, which services Leeds-Grenville County, and has 600 out-patients. 3. She receives referrals from the Residential Rehabilitation Unit, 'which is an alcohol and drug treatment centre, there being no geographic boundaries‘to referrals received by her. 4. The purpose of-the Vocational Rehabilitation program is to provide clients with help to develop their vocational abilities to full potential. Patients (also referred to as "clients") are referred to the Ward Treatment Conference, being a multi- disciplinary conference which meets once a week and involves all the units in the institution. 5. The disciplines involved in the Ward Treatment Conference include psychiatrists, psychologists, social workers, recreationists, nurses and staff involved in vocational rehabilitation. 6. There is also a meeting referred to as "Cardex," which takes place two times a week (Monday and ~Friday), where the present population of a unit is reviewed and significant referrals are 11 identified. The meeting is chaired by the psychiatrist. The nurse responsible for the patient record (also referred to as the , "bookkeeping system”) is also present as are all other disciplines who may contribute as problems in their areas are identified. 7. Referrals are made to Ms. Watts where vocational problems are identified and she can request that a patient be referred to her. Members of any discipline can refer a patient to a member of any other discipline. 8. Out-patient referrals are directed through the individual teams, and the social worker (identified as the "I.ntake Worker,") presents all out-patient referrals for the various teams. The Intake Worker identifies the reason for the referral and how it came about; i.e., self, family physician, etc. Out-patient referrals are identified at conference meetings and usually occur following a Cardex meeting. During the initial referral, a Case Manager, who could be from any discipline, will be identified. It is at this point that review dates are set up for reporting back on a client's progress. There was one out-patient conference for Elmgrove, and that alcohol treatment out-patient information was exchanged following regular ward treatment conferences. 12 9. There was no material difference between the programs offered to in-patients or out-patients. She would occasionally have to ,, find housing for clients in the alcohol treatment.program. 10. At the time of the grievance her case load was approximately 45 clients, including both in- and out-patients, with the normal range being from 25 to 60. 11. In the case of alcohol treatment patients, their problems are fairly obvious by the time they come into treatment. There is usually considerable difficulty with their employment and their jobs are usually in jeopardy. She must "liaise" with a client's employer. She provides the employer with documentation and recommendations as well as information about follow-up. 12. The clients at Elmgrove are made up of persons ranging in age from young to old with a full range of handicaps: mental, physical and psychiatric. 13. Although the psychiatrist has the ultimate responsibility for any patient, and different responsibilities are delegated to each discipline, once a referral is made for vocational treatment, shoe is responsible for the client's treatment and progress. 14. When a patient is referred to her, she has an initial interview with him/her. She performs educational and vocational 13 reviews asking questions of the client intended to draw-out information as to what they have done in terms of employment; at , the same time she obtains a general history. 15. She outlines her services to the client and asks them about their interests. Depending on what information is.given to her, she will do a file review, speak to members of other disciplines and may have vocational assessments performed. 16. The vocational reviews (or histories) consist of information, such as whether the client is working, as well as the results of available performance evaluations. 17. She will identify any work-related appropriate behaviours as .indicators of the clients' being "job-ready"; for example, she will record evidence of attendance, punctuality and productivity. Where she ascertains that clients are not working or, while working, are not doing well, she examines options for changing their behaviour. 18. She .referred to Exhibit 6, which is a supplemental classification of factors influencing status and contact services. She uses .this document when a person is in the process of being accepted for out-patient services. 19. After she has completed an initia~l client interview, she fills out a form which requires her to identify "psychosocial stressors." (‘.,,, c. I 14 These are located under the "~62" category. This document was identified as one circulated by the Unit Director, who is a psychiatrist, along with instructions to use it for the purpose of consistency when statistics are gathered with respect to "reasons for referrals." She stated that the.identification off psycho- social stressors is not part of a medical diagnosis. Factors noted by her were: unemployment, housing, family status and how the stressors relate to the vocational context. An example given was the lack of family support or basic transportation that would impact on a client's vocational potential. 20. The initial interview takes from one to three hours, following which she endeavours to determine with the client what should be done next; for example vocational assessment, job placement or education. 21. The vocational assessment provides an opportunity to identify a client's interests, aptitude, and his/her vocational strengths and weaknesses. Ms. Watts employs a variety of tests, for example the General Aptitude Test Battery (GATB). She does not administer i, these tests, although she testified that she had done so in the past. She identified other tests for different functions, for example, dexterity, small hand, and full range of motion tests. 22. It is her responsibility to decide what the appropriate vocational treatment plan should be. This his assessed by reviewing a combinat ,i his/her st, al 15 on of the client's work and educational history and ted interests, in the light of her interviews with the him/her. She takes. into account other factors such as any physical and medical limitations. An example given was epilepsy which could be a contra-indication to undertaking certain kinds of work. She had to have a basic understanding of medications, medical conditions, and medication side-effects, for the safety of her clie,nts. 23. VRC's are also responsible for implementing the Vocational Treatment Plan. She discusses with her clients any disability they have, their "acceptance of the disability" and whatever limitations are placed on them because of it. If the client has not accepted his/her disability, she will engage in extended dialogue reviewing available options. She will then endeavour to narrow the client's available vocational options to help him/her learn to accept a realistic goal. 24. Depending on a client's motivation, he/she may be encouraged immediately to attempt to be placed in a job and/or an educational environment. 25. Where the client is not sufficiently motivated, more time is taken and many interviews held discussing goals and how they might be attained. Incentives, such as wages or other remuneration, are discussed with the client. Many clients were said to have problems 16 with motivation, especially in-patients. In addition, many clients were fearful of engaging in a vocational rehabilitation program and had low self-esteem. 26. .She considered the following factors in deciding whether a client was inappropriate for a rehabilitation program: poor communication skills; limited physical potential; state of physical health, existing psychological/psychiatric condition; history of previous unsuccessful attempts. 27. Where she determined that a client was/not employable, she sought other resources. For example, where a client had no work history, she would refer 'him/her for assistance under the Family Benefits Act. If the client had a work history and was now disabled, she determined whether s/he is eligible for payments under the Canada Pension Plan or long-term insurance from former employers, or for short-term assistance through Unemployment Insurance. 28. She was responsible to report to the Ward Treatment Team on the client's, progress. Reporting takes place both within the Department of Vocational Services (the "Department") and the clinical, conference (the "Team"). There 4s a regular meeting in 17 the Department which takes place once a week attended by: vocational counsellors, vocational supervisors, Director of Vocational Services, assessment officer and Vocational Centre Supervisor. The'purpose of this meeting.is to gather statistics and to advise the Department what she is doing with her clients. 29. A though the psychiatrist is at the apex of the structure and has power to veto her treatment plan, she could not recall any instance where this had happened. 30. Her Supervisor at the time of the grievance was Calvin Prescott, Director of 'Vocational Services. Her supervision invnlved the ,exchange of information regarding her case load. Information imparted to her was for evaluation of her work and Mr. Prescott usually informed her that she was doing very well. He was said to rely on her judgement and her assessment of her cases and would only infrequently make suggestions but did not impose them. 31. she did not measure the success of the Vocational Treatment Plan by the number of clients who were successful in maintaining long-term employment in the private or public sector, but by whether a client was functioning at his/her optimal level. It was her responsibility to decide when the patient was functioning at his/her optimal level, which she did with feedback from him/her. 32. Her position specification (Exhibit 4A) with certain minor inaccuracies, reflected her duties and responsibilities. She ,, testif,ied as to a few inaccuracies: (i) third line - "obtain approval for vocational programming". She stated that this was not relevant as she did not obtain approval and was expected to proceed to develop, implement and carry out vocational treatment plans without prior approval. (ii) "Participating" - She initiated rather than acted as a mere participant. 33. She testified in some detail, elaborating upon activities referred to in Exhibit 4A: (i) Discharae Planning Discharge planning took place at the clinical (ward treatment) conference. She is responsible for identifying to the team what her follow-up role will be with the client following discharge. Follow-up entails the following kind of.,duties: assisting the client with job search, return to work, education, participation in hospital programs. On discharge a client may only be beginning the vocational program. Her interaction with a client is based on developing "rapport" and identifying goals. Once the relationship has started, she will have a number of interviews and meetings with clients. (ii) ) Services 19 An additional program is the "Supported Employment Program" operated outside of the hospital. The program consists of "walking" a client through an employment situation until he/she is able to complete the job on his/her own. The workshop instructor is responsible for monitoring the progress of the client, and Ms. Watts receives the evaluation prepared by the instructor. Evaluations may be written (formal) or verbal (informal). (iii) Work Adiustmemg Work adjustment training takes place in the hospital or community allowing clients to participate in various kinds of employment so that they might identify areas of interest and jobs for which they have some ability. In the case of in;hospital programs, she consults with the Workshop Instructor who is responsible for monitoring a client's progress. The Vocational Rehabilitation Department has a formal work adjustment contract with Canada Employment and Immigration Centre ("CEIC") for referrals for a full range of services, such as: job vocational assessment; variety of work placement; and / evaluations. On occasion, referrals are received from CEIC, in which case she is responsible to carry out the referral and follows 'the same reporting process as with other patients. She reports to the CEIC counsellor. Clients in the hospital who are part of the CEIC program are paid a special incentive allowance, with the funding 20 coming from the vocational budget. Incentive pay is arrived at using several factors including attendance and evaluation. A i dispute by a client about assessment pay is dealt with .by Vocational Counsellors. She prepares individual vocational program plans for the patient and Workshop Instructor, and as part of this plan the client might be required to meet certain progress or improvement goals prior to being placed in outside work or activities., Workplaces outside the hospital are not limited to those of-a particular type and could be in any industry or service. She contacts employers and, on occasion, asks that they assess a client in order to obtain information concerning his/her abilities in the community. In those circumstances the client is paid an incentive allowance unless the placement is through the CEIC work adjustment program. The client could also be paid through the Vocational Rehabilitation program at the Ministry of Community and Social Services ("COMSOC"). She sometimes refers clients working outside the Hospital to COMSOC~ for fi.nancial assistance. A close association exists between herself and the COMSOC Vocational Counsellors and she maintains client information in the file and ideas for the client's placement through COMSOC assistance. 21 Since 1987, she has led sessions of group counselling, identified as the "Singer" program. This program involves career counselling, job skills, life skills and interviewing techniques and role playing devices. She also engages in individual counselling; descrbed above, and suggests options, as described above, compatible with any client's disability. Where necessary, such matters such as basic hygiene and the feasibility of available vocational services are discussed with the client. There are occasions when she is involved in crisis intervention counselling and engages in liaison with employers in an attempt to correct behaviour problems in the workplace which might otherwise require removal of the client. When a placement proves to be unsuccessful, she endeavours to arrange another one. (v) -y Although "diversional work activity" is a term that no longer dominates the area, it is still employed for long-term patients with little potential for community or competitive employment. It is sometimes called "maintenance" and may involve persons who are retired or over the age of 65. On occasion, clients will relegate 'themselves to this category through a process of self- identification. Where a client wishes to be employed, but Ms. Watts, on the basis of her assessment, concludes that this is not , 6, : (...: 22 a realistic possibility, she will endeavour to assist him/her to arrive at's realistic objective. ,, (vi) Pr vidin I, After-care involves the care of out-patient clients. She may serve as the Case Manager ~for a particular out-patient. In this capacity she co-ordinates all services for the client. (vii) Identifvina Educational Needs Educational needs 'may be identified as a result of interviewing a client who expresses his/her needs through achievement testing or through then hospital learning centre. Resources in the community are community colleges and universities. St. Lawrence College assist clients through offering student loan applications and accompanying documentation. When a client is enrolled in an educational program, she'follows his/her progress on a monthly or bi-monthly basis. She will assist clients seeking educational advancement by making them aware of funding that is available through Unemployment Insurance for participation in training programs. (vii) Client Referrals to Communitv Resources Ms. Watts identified the following traininq,opportunities that are available in the community: 1. Srockville Community Workshop; 2. "Career services"; 3. 4. 23 CEIC; COMSOC. i These community resources are all sheltered workshops located outside of and not associated with, the Hospital. Usually such a placement is the first step taken by the counsellor dealing with longer term clients. These workshops are similar to the in-house workshop located in the Hospital, and the word "sheltered" means that there is a good deal of supervision and an opportunity for training on a "one-on-one" basis. Movement to an outside facility > is regarded as progress on the part of a client. "Career Service" is an arm of the Brockville Community Workshop and is closer to work placement, as. contrasted with a training opportunity. The client is referred to the Brockville Community Workshop and there is usually a four to eight week assessment period to ascertain if he/she is ready to be placed in a community setting. she plays a coordinating and referring role during the placement period and engages in follow-up monitoring. As noted above, she may assist clients further by referring them for pension and disability benefits and she assists them with the paperwork associated with the process, and she also will appear as a client's advocate in the event of any appeals or hearings associated with pension applications and the receipt of disability benefits. 24 (ix) Liaison with Communitv ReSourCeS/PriVate SeCtOr EITIDlOVer.9 She maintains liaison with CEIC, the workshops, social / agencies, COMSOC and Youth Employment Assistance Headquarters. There is ~a link among community resource agencies who share common interests, and she and representatives of these agencies have informal "get-togethers" that are client-related. This enables them to share information about such matters as new developments that may have arisen in different Ministries. She also "liaises" with private sector employers through the process of "private sector recognition" days. She also participates in "employer appreciation" days held in conjunction with "graduation" exercises for people involved in the "Futures" program. She described the special difficulties involved in endeavouring to obtain a second placement for a~client. lx) Promotinq Vocational Rehabilitation She has taught at St. Lawrence College, in its Vocational Rehabilitation Counsellor course, since 1987. In addition, as a member of the "Youth Employment Assistance Headquarters," she initiated "Youth Action" in 1988 on her own time. She has also spoken at public schools on the following topics: 1. teenage suicides; 2 employer expectations; 3. the disabled in the workplace. 25 Her speaking engagements followed an inquiry from her supervisor, Mr. Prescott, as to whether she.was interested in engaging in this activity. (xi) Particiuation in the Communitv In 1987, Ms. Watts was President of Brock Cottage, located in Brockville, being an organization for recovering alcoholics. This was a voluntary undertaking on her part, but she kept her department informed about it. She also discussed her participation on boards and committees during her performance evaluations, and she stated that her supervisor encouraged these activities, which also included Brockville Community Workshops, Youth Employment Assistance Headquarters, and Family Focus (an agency in Leeds- Grenville for establishing community resources). She regarded this kind of work as valuable to the Employer as it enabled her to place clients with these agencies. She also regarded her activities as representing good public relations for the Employer. 34. She did not feel that she was subject,to any clinical case review. The only review that she referred to was a performance review that took place less than once every two years, which did not comprise a case by case review but represented an overall assessment of her performance. There wasp evidence that case review meetings involving herself and her supervisor were established after the date of her grievance. 26 35. She identified her role as being primarily directed' at assistintg clients to build satisfying personal relationships~ and ,' improving their social interactions with others'60 that they.could function better whether they were employed or not. 36. Although she did not usually perform family counselling, she has done so on occasion. 37. Exhibit 7 was identified as the Vocational Data Sheet and Exhibit 8 as the Vocational Service Individual Program Plan. Exhibit 7 is the referral form used~ by her for vocational assessment. Exhibit 8 was not in use at the time of the grievance, although simi.lar information would be set out by her in her progress notes. 38. She frequently emphasised inher evidence the fact that her role as a Vocational Rehabilitation Counsellor is carried out largely independently and she maintains a leadership role in this area. She also emphasised that her activities are in large measure directed by the client. Because of the nature of the disabilities frequently affecting her clients. she has occasion to engage in "crisis counselling." One of the techniques employed by her, after a joint decision has been arrived at relating to the actions to be taken, is to enter into "contracts" with her clients. These "contracts" are frequently concerned with the "modification of some inappropriate behaviour". 27 After reviewing the evidence of Ms. Watts and the "representative" witnesses.from the other hospitals, we accept the I Union's position, which was not seriously objected to by the Employer, that "all of the Grievers perform substantially the same duties." We also accept the Union's submission that: "There are minor administrative differences between the ways each hospital administers patient treatment but these differences do not amount to any difference in substance regarding the Grievers' core functions and responsibilities . . . .'I We believe that Ms. Watts properly serves as a representative Grievor, and it is unnecessary to consider the Union's alternative submission should we have found, contrary to its original position, that the "differences in the administrative supervision" at the various institutions were "crucial to the classification of the core duties of the Grievor6 II . . . . Although it took 19 days to hear the evidence, much of it with respect to the Grievors' duties and responsibilities, we do not find any substantial difference between the parties concerning the description of what the representative Grievor did. Where they differed was in interpreting how those duties and responsibilities should be characterised. I 28 Evidence of Calvin Prescott Mr. Prescott, was called as the first witness for the Employer on the eleventh day of the hearing being February 11, 1991. His evidence is as follows: 1. He became Vocational Rehabilitation Supervisor in 1976 in the Vocational and Rehabilitation Volunteer Service Department at the I Brockville Psychiatric Hospital. 2. The Director of the Departmen< left in 1988 and was not replaced. He regarded himself as performing the Director's duties and indicated that "that remained a bone of contention for several years. " I I 3. In 1984 his job description1 was changed and he was I reclassified and was officially named as the Director of the Department. Between 1980 and June of 1987, he was both the Supervisor and the Director of t!e Vocational Rehabilitation Service Department. 1 I 4. He acknowledged ~that he had authorized Ms. watts to participate in community activities such as the Board of Directors of Family Focus and as a member of the Personnel Committee. I I 29 5. During his cross-examination, which commenced on the 12th day of the hearing, Mr. Prescott confirmed that, in his view, vocational rehabilitation represented a unique profession that was more highly developed in the United States than in Canada where it had not achieved a proper degree of respect. 6. He testified that as a vocational rehabilitation counsellor MS. Watts' primary focus was on the vocational potential of her clients. '7. He also confirmed that Ms. Watts' client group was composed pf persons who required vocational rehabilitation because of a range of disabilities: physical, emotional, psychiatric, or a combination thereof, but whose main problems were psychiatric. 8. He confirmed that Ms. Watts' duties and responsibilities included the identification of educational resources for her clients and that she assisted them in assessing educational resources. 9. He confirmed that Ms. Watts had a responsibility to place her clients in educational and training programs, actual jobs, as well as in.pre-vocational programs. 30 10. He confirmed that Ms. Watts was responsible for assessing her clients' employment potential and identifying suitable progr;j,ms for them. 11. He confirmed that Ms. Watts was responsible for identifying access to different work situations for her clients, which situations ranged from workshops, supported employment, hospital services employment and independent employment in the community. 12. He confirmed that Ms. Watts determines the appropriate path for a client's vocational rehabilitation and that she recommends whether a client should participate in in-hospital or community programs. He agreed that it is Ms. Watts' responsibility to monitor a client's progress through a vocational plan and that her ongoing role involves defining the goals and strengths of a client. 13. He agreed that it was important that realistic goals and i strategies be agreed to by the client and that between two and three of every ten clients have unrealistic expectations about their vocational potential. Ms. Watts' goal is to assist clients in arriving at a realistic vocational objective, and she used counselling techniques to achieve this goal. 14. He agreed with Ms. Watts that many clients have difficulty in developing a realistic vocational objective because they do not possess sufficient self-understanding and self-acceptance, nor do 31 they have an accurate perception of their abilities. He agreed that Ms. Watts has a role in assisting ~her clients to come to a ,' realistic (".attainable") understanding of their vocat%onal abilities and capacity. 15. He agreed that one of Ms. Watts' objectives was to assist her clients who had difficulty with self-understanding and acceptance to explore their feelings, attitudes and abilities in the vocational context. 16. He disputed the use of the term "therapeutic" to describe the relationship between Ms. Watts and her clients, although he acknowledged that others commonly use this term in describing the relationship. His reason for not using the term is because of his perception that it was inappropriate. However, he agreed that Ms. Watts' role, in part, is to be seen by the client as understanding and non-judgmental; that is, as an accepting figure and as a person with whom he/she can speak without fear of rejection. He agreed that "work is a form of social behaviour" and that "... the ability to work . . . is a function of a complex process of socialization." He also agreed that basic work attitudes are formed within and outside of the family and that work behaviour involves an emotional component. 17. He testified that Ms. Watts was not expected to work on an on-, going basis with a client's family, but agreed that she has to 32 occasionally meet with a client's family.members and, in certain circumstances, it is ‘appropriate for her to meet with them. An ,' example given was where Ms. -Watts determines that one of a client's problems in reaching his/her vocational objectives is as a result of a lack of family support. 18. He agreed that Ms. Watts was responsible for compiling a vocational and educational history, with the main focus being events that took place when the client was in school and/or at work. He stated that "the counsellor is expected to have some sense of the family situation, medication, current behaviour, and other things the client is involved in." 19. He agreed with the following definition of "treatment": "Any regularly planned or scheduled or agreed-upon series of interactions with clients and families designed to improve or resolve defined problems.!' 20. He agreed that clients are in the hospital for "treatment" and that "treatment" is planned during the multi-disciplinary team meetings. He later retreated from his acceptance of the word "treatment". His stated reason for rejecting the use of that word was because: "I don't try to define the activity, I look at the outcomes. It doesn't matter what you call it." He responded to the question: "At the end of the day, what is the purpose of planning? and the result of the activities, that is, what happens 33 to the client?" by answering: "The ultimate goal is to help the client to improve his situation." He was then asked: "That's not treatment?" and responded: "That is not important to me." He was then asked: "If I call it treatment would you object?" and he responded: "No." 21. He confirmed that Ms. Watts was an integral part of the multi- disciplinary team and that she engages in the planning process with respect to her area of expertise, being vocational rehabilitation. 22. He testified that he attended the multi-disciplinary team meetings one or two times~ a year and confirmed that he did not address clinical issues when he did attend a meeting. 23. From 1976 to 1980 he carried a case load of between .20 and 35, and.from 1980 to approximately 1984 he had a case load of between 30 and 35. When asked when he ceased to carry a case load, he testified that he would have to guess but thought that it was in 1984, while acknowledging that he had been involved "on and off" in taking on case loads on an irregular basis. 24. He testified that Ms. Watts' case load fluctuated between 45 and 60 clients, and stated that it was unnecessary for her to obtain formal approval in order to undertake a vocational rehabilitation program. Approval was said to be informal. The 34 plan is brought to the team in the same manner as other plans presented by members of the various disciplines involved. i 25. He could not recall a psychiatrist ever dictating to Ms. Watts what should be contained in her vocational plan. He regarded the position of the psychiatrist as being one of greater authority in guiding the direction of.the program, with each discipline having significant "weight" in their area of specialization. In the case of Ms. Watts, she was said to have greater input and authority in her area of expertise, being vocational rehabilitation. 26. He stated that in June of 1987 his position specification (Exhibit 45) was not entirely accurate, as the work he was actually doing was more in keeping with the job specification for the Director,. which prevented him from performing all of the duties set out in Exhibit 45. He acknowledged that there were some things he was unable to do to the extent that he wished. He agreed with the statement that: "Because you were wearing two 'hats,' you were not able to do as much of these activities as you would have liked." It would appear from his evidence that Ms. Watts was subject to very little supervision, and he confirmed that she was appraised only one or two times during the period from 1980 to 1987. 27. He testified that the only review of Ms. Watts' casework took place during the audit conducted 'by him. He was .unsure as to whether this audit took place every three months in 1987, although 35 he felt it did not take place more frequently than that. The audit was of between five and six cases which would mean that he,,would review, at most, between 20 and 24 cases a year. 28. He confirmed that, in 1987, there were eight counsellors on staff and each counsellor had's case load of about 45 clients. This would mean that he would have.reviewed, at the most, three of Ms. Watts' cases a year. 29. He 'agreed that a vocational counsellor is a member of a clinical treatment team and, as such, vocational rehabilitation is a clinical service. 30. He disagreed that vocational rehabilitation fell within the definition of "treatment modality" as "modalities are types of treatment employed by clinicians for a certain problem, for example, behaviour modification". However, in response to questions asked in cross-examination, he did agree that the purpose of vocational rehabilitation was to modify behaviour in a vocational context, and that behaviours which are important in this context are dependability, reliability, problem-solving skills, and the ability to self appraise. While he did not agree that self- reliance fell into this category because this was not, in his view, a behaviour, he acknowledged that it is important to successful vocational functioning and that it is subject to improvement. He regarded the factors identified by him, above, as subject to being 36 assisted by the counsellor's role. He also acknowledged that'a counsellor, in performing this function, possesses a number of options, examples being work assessment, work adjustment and education, in addition to interviewing and counselling. 31. He acknowledged that Ms. Watts was familiar with "vocational rehabilitation modalities" and that what she does "... is part of the overall treatment plan." 32. He acknowledged that Ms. Watts is directly accountable for vocational~planning and that this accountability is similar to the "accountability" section of Exhibit 45 (Position Description for Rehabilitation Supervisor), "errors in judgment . . . which could adversely affect programming, outcomes, etc." 33. He agreed that it is important for Ms. Watts to maintain links with community agencies. 34. He confirmed that the vocational clinical conferences occur once a week, that they review 80 cases (eight counsellors X average of ten cases) during each meeting, which lasts an hour and a half. This allows for approximately one minute per case. 35. On the 13th day of the hearing (February 18, 1991). during cross-examination, Mr. Prescott confirmed that "case review" was ( {;, 37 not in existence at the time of the grievance, although he believed that there was a less formal practice followed at that time. ,' 36. He testified that "supervision was less that what it should have been" although he would not agree that the counsellors received very little supervision. In his view it was "at best . . . general supervision." 37. He agreed that it was important for a counsellor to be familiar with a client's emotional and vocational problems in order to carry out vocational planning. He added that a client does not leave his/her social and emotional~problems at home when they leave for work. 38. He stated that while vocational counsellors do not compile a comprehensive vocational or educational history of a client, they provide "the first bit of information and'that includes educational and vocational history." He regarded the vocational counsellors' gathering of information as amounting to "rehabilitation diagnosis." 39. He regarded the work of vocational rehabilitation as being "extremely work intensive and a long-term proposition to rehabilitate the long-term mentally ill." He agreed that more intensive vocational rehabilitation work was required in the case of'sicker clients and that there was a "direct correlation between 38 the severity of the illness and the length of, time of the relationship between the client and the vocational department." , "Diversional" activities were more frequently employed with the "long-term mentally ill." Evidence of Peter Carter Peter Carter was the second witness called by the Employer on the fourteenth day of the hearing being February 19, 1991. He is the Chief Social Worker at BPH. The Union objected to his testifying on the basis that his evidence would be irrelevant as he supervised none of the Grievers or the "usage" witnesses, and, as such, had no direct knowledge of their duties or responsibilities, nor did he have a role in drafting the class standards. It was submitted that he was unqualified as an expert in any of the relevant matters at issue. The Board'ruled that it would hear Mr. Carter's evidence and rule on its admissibility later. Mr. Carter testified: / 1. That he had no responsibility for the Vocational Rehabilitation Department. L 2. That he had never had any affiliation with the Ministry of Community and Social Services. 39 3. That the Social Work Department supplied social work services and was not involved with vocational rehabilitation. / 5. That as far as he was aware social workers were not engaged in skills training. 6. That clients were encouraged to develop better life skills and were assisted to do so. 7. Clients were assisted to improve their level of functioning by social workers. 8. Be agreed that one of the goals of the treatment team for clients was to have them'function at as high a level as .possible but stated that this was largely theoretical and was a goal that was frequently not reached. Evidence of Dr. Brenda Wattie On December 19, 1991, being the nineteenth Andy final day of the hearing, the Employer called Dr. Brenda Wattie, who was then employed as Director.of Mental Health Advisory Services with Hea'lth and Welfare Canada and had occupied the position of Vice-President of the Ontario Association of Professional Social Workers since June of.1991, and who is also a founding member of.the College of Social Workers of Ontario. i The Union objected to the Board's receiving Dr. Wattie's evidence on the basis that it was not relevant and on the basis that she could not be considered an expert witness with respect to the sal.ient and germane matters at issue in this hearing as she had no expertise in the area of vocational rehabilitation. The Board ruled that it would hear her evidence and later rule upon what, if any, weight it should be afforded. Counsel for the Employer submitted that although Dr. Wattie is not an expert.in vocational rehabilitation, she is an expert in social work, with a psychiatric specialty. It was submitted that her evidence was relevant to assist the Board to give meaning to the words of the class standard. The words were said to be "clearly terms of art with specific meanings in the social work context." The Union called no expert evidence with respect to the meaning of the terms of art contained in the SW~ class standard. Dr. Wattie testified that: 1. Social work was concerned both with the internal psyche of the individual (the "personal" or "intrapsychic") and with the full 41. range of the individual's relat ionships to the outside world (the "environmental"). 2. Social work may treat the underlying causes and the effects of the personal and environmental dysfunctioning. She regarded vocational rehabilitation as addressing only the effect of the dysfunctioning on the ability tom work. 3. The following is a summary of Dr. Wattie's evidence with respect to the specific words used in the SW2 standard: (i) "Social Historv" "Social history" is a "broad and comprehensive" concept that deals with a person's "life history, personality and social development." In response to a question as to whether Exhibits 7, 8 and 17, which were the forms used by~various of the Grievor-s, contemplate the collection of information of an amount or nature sufficient to be called a "social history," she responded that while they might be "quite appropriate" 'as the basis for a vocational assessment, which was not her area of expertise, they did not amount to social histories because "the range of information was too narrow," that is, that they were "basically data" relating to vocational history "as opposed" to containing the "comprehensive" information necessary to make a psychosocial i 42 assessment. She agreed that the information elicited in Exhibit 53 would constitute a social history, contrasting that information with that which would be obtained in Exhibits 7, 8, and 17; In answering this question, she acknowledged that vocational counselling was not her area of specialty, but stated that.she did not regard it to be a sub-specialty of social'work. She also confirmed that she was not an expert on vocational assessment. (ii) "Psvchosocial "Psychosocial diagnosis" is interchangeable with the term "psychosocial assessment." She adopted the definition of "psychosocial .assessment" set out in Exhibit 64, which ,is an excerpt from the Social.Work Dictionarv (2d ed.) edited by Robert L. Barker and produced by the National Association of Social Workers. The definition is as follows: psychosocial assessment The social worker's summary judgment as to the problem to be solved; also referred to as the "psychosocial diagnosis." This description may include diagnostic labels (such as DSM-III-R terms and codes), International Classification of Diseases (TCD) terms, descriptors, from the pm- (PIE svstem), results derived from psychological tests and legal status, brief descriptive expressions of the problem configuration, a description of 'existing assets and resources, the prognosis or prediction of the outcome, and the plan designed to resolve the problem. Throughout the intervention process the psychosocial assessment is a "work in progress," in that it is revised continually as new information is acquired, as circumstances and goals change, and as progress toward goals is made. 43 The key feature of a psychosocial diagnosis is'a "judgment" as ,' to the nature of the psychosocial problem. (iii) _r n m le e t "Treatment plan" in the psychiatric social work context would involve "psychosocial therapy." She adopted the definition of "psychosocial therapy" in Exhibit 64: psychosocial therapy A relatlonSh,lE that occurs between a professional and an individual, familv, w, or communitv for the purpose of helping the client overcome specific emotional or social problems and achieve specified goals for well-being. Psychosocial therapy is a form of pp that emphasises the interface between the client and the client's environment. The psychosocial therapist tends to focus on interpersonal and social relationshio problems in addition to intrapsychic concerns. According to Francis J. Tuner (Psvchosocial Therapy: ,A Social Work Perspective, New York: Free Press, 1978, p.51, psychosocial therapy also seeks to mobilise available resources or create needed ones and combine them with individual, group and familial relationships. to help people modify their behaviours, personalities, or .situations. This is done to help attain a satisfying, fulfilling functioning within the framework of one's values and goals and the available resources of society. Psychosocial therapy "is a,form of psychotherapy" .in which the problems original ) therapist "tends to focus on interpersonal and social relatw in addition to intra-psychic concerns." (Emphasis in (iv) "Social 44 Although social work is not a regulated profession in Ontario, Dr. Wattie testified: that there was an indisputable body of knowledge and skills which constitute professional "social work." In referring to the "knowledge, skills, abilities and values for social work practice," Dr. Wattie relied on the statements contained in Exhibit 65, which is as follows: Knowledge, Skills, Abilities, and Values for Social Work Practice Knowledge Knowledge of casework and group work theory and techniques. Knowledge of community resources and services. Knowledge of basic federal and state social service programs and their purposes. Knowledge of community organization theory and the development of health and welfare services. Knowledge of basicsocioeconomic and political theory. Knowledge of racial, ethnic, and other cultural groups in society - their values and life-styles and the resultant issues in contemporary life. Knowledge of sources of professional and scientific research appropriate to practice.~ Knowledge of the concepts and techniques of social planning. Knowledge of the theories and concepts of supervision and the professional supervision of social work practice. Knowledge of theories and concepts of personnel management. 1 45 Knowledge of common social and psychological statistical and other research methods and techniques. Knowledge of the theories and concepts of social welfare ,administration. Knowledge of social and environmental factors affecting clients to be served. Knowledge of the theories and methods of psychosocial assessment and intervention and .of differential diagnosis. Knowledge of the theory and behaviour of organizational and social systems and of methods for encouraging change. Knowledge of community organization theory and techniques. Knowledge of the theories of human growth and development and of family and social interaction. Knowledge of small-group theory and behavioral dynamics. Knowledge of the theories of group interaction and therapeutic intervention. Knowledge of crisis intervention theories and techniques. Knowledge of advocacy theory and techniques. Knowledge of the ethical standards and practices of professional social work. Knowledge of teaching and instructional theories and techniques. Knowledge of social welfare trendsand policies. Knowledge of ,local, state, and federal laws and regulations affecting social and health services. __--_____-__-__--_______________________----------------- .Skills Skills in listening to others with understanding and purpose. 46 Skills in eliciting information and in assembling relevant facts to prepare a social history, assessment and report. Skills in creating and maintaining professional helping relationships and in using,oneself in relationships. Skills in observing and interpreting verbal and nonverbal behaviour and in using a knowledge of personality theory and diagnostic methods. She also relied on the statements contained-in Exhibit 62, being the Colle e Members' < lfied. Cert' Although there is no mandatory accreditation required ,of social workers; Exhibit 62 does furnish some indication of what "professional .competence in social work" is: A level of professional competence sufficient to meet the standards of membership in O.A.P.S.W. and for practice in Ontario, ~requires an underlying knowledge base. This base must include considerable factual knowledge gained from a range of related academic disciplines and from the professional knowledge of social work. Even more importantly, this knowledge must be selected and understood in terms of its relevance to social work practice. The following areas are important to this knowledge base. : gs v'dence o - Mr. Rogers was the first "usage" witness called by the Union, and he gave his evidence on the seventh day of the hearing, being June 25, 1990. Mr. Rogers testified that: i ‘. 47 1. He is classified as a ~2 and holds the position of Vocational Rehabilitation Counsellor, referred to as "VRS," and is employed by COMSOC in Thunder Bay. 2. He has a three year B.A. in sociology from Lakehead University. 3. Exhib it 29 is Mr. Roger's position specification form and he and stated that it accurately 'represents his duties responsibilities. .ities 4. He has a 45 client case load with the following disabil breakdown: 50 - 60 per cent - physically disabled; 20 - 25 per cent - psychiatrically disabled; 20 - 25 per cent - developmentally handicapped. 5. He~testified that the psychiatrically disabled cl,ient group: . ..present a greater difficulty. Depending on the degree of impairment, schizophrenic, manic depressive, they are generally more volatile... . Psychiatric patients have to be more controlled - under control of a psychiatrist, psychotherapist - have to be taking "meds" otherwise it is difficult to maintain progress. 6. Once a month he receives five new,referrals from the intake worker who is one of the VRS counsellors. The referral client must bring with him/her a Form 4 signed by a physician which will set out: i I 48 general information; client's name, address; medical information; general heading; the disability and the limitations the,reof; prognosis and limitations regarding self-care, etc.; ongoing treatment and meds needed; number of hours the client is able to participate in training or work; general comments that might prove helpful in terms of employment, e.g. suitable for light employment. The referral will, on rare occasions, be accompanied by clinical notes from the referring physician, psychiatrist and/or occupational therapist, but will always' be accompanied by a referral form from a referring agency such as: Canada Employment and Immigration Centre ,General Hospital City of Thunder Bay Social Services Private Agencies 7. The referral contains such general information as the name of the client, birth date; type.of disability, educational and work history and source of ~funding. 8. He described the supervision received by him from Ms. Deborah Czabak, He usually met with her once a week .for her signature on authorisation sheets or "authorities" which give him authorisation to perform certain work for the client and spend CQMSQC funds for this purpose. During the weekly meeting, Ms.~ Czabak and Mr. Rogers discuss his cases and he 'I... will share any information regarding our services in the community or any new involvement with a potentially difficult client . . . ," 49 9. In addition to the weekly meeting, he prepares a quarterly case load analysis for Ms. Czabak. This process encompasses his , listing his cases, the date received, identifying the various services provided by him and reviewing his opinion as to the status of the case and its prognosis. He receives a performance appraisal once a *ear. 10. He attends staff meetings once a week on Monday morning. The purpose of these meetings is to share general information regarding any upcoming changes in the department, updating on conferences, events in the community, and finding out where everyone will be " - during the week. 11. When he receives a referral he waits for the client to phone him to make an appointment. Once an appointment is arranged he will explain the services provided by COMSOC, and this role. He will then complete a Form 1, which is the application for vocational rehabilitation services. This form contains the following information: client's name, address, disability; conditions which, limit employment; brief educational history; source of funding; whether client's injuries are the result of a work- related accident; category if an active workers' compensation recipient; and whether the client isa disabled veteran. 12. The initial interview lasts about an hour and he obtains the client's educational history along with other information such as: 50 1 client's SIN; who referred, date referral;. date of interview;' age; type of disability ties); onset of disability (ies); physician; specialists seen; period(s) of hospitalization; and any restorative needs. lie then endeavours to obtain a vocational profile and requests the following further information: work history (he generally asks clients, if capable, to bring a resume); what work the client can do and what they want to do; i.e. indoor/ outdoor/ sedentary; educational history; centring around high school history, what subjects liked and disliked; periods of disruption in schooling; whether he/she belonged to any club or social groups; present educational plans; any post-high school, co1 lege and/or apprenticeship. 13. In endeavouring to obtain a client's social and family history, ,he asks for the following information: father's employment; mother's employment; number of children in family and ages; sibling's employment; family's attitude toward rehabilitation; adverse influences towards going back to school; and current status; i.e. how are things in the family, is the family supportive? 14. He does no.t do "family therapy" but will consult with the family, where necessary, if the client so requests. 53 15. He assists his clients in formulating realistic vocational goals.within their capabilities without losing their dignity. 16. After the first interview, he endeavours to obtain a sense of a client's long-term plan by asking where he/she wants to be vocationally six months from that time, in a year, and in five years. 17. BY the time of the second interview a rapport should be developing so that he is usually able to discuss with the client how he/she' perceive his/her disability. In addition, he will by then have a better idea about the client's self-image and how his/her disability has affected his/her vocational potential. 18. At this stage, where it seems feasible, he will discuss a vocational goal with the client, the development of which may take several months, and he will write up a Rehabilitation Plan. 19. The client is then assessed by a psychologist and/or psychometrist. Mr. Rogers will discuss the psychological assessments with the client to identify his/her strengths and weaknesses. He may refer a physically d~isabled client to a physiotherapist (through a physician). He also may refer a client to the March of Dimes workshop for a complete occupational therapy evaluation. 52 20. the seeks to place his developmentally handicapped clients with community agencies for training and assessment of job readiness, or in actual employment if the client is ready for such a placement. 21. 'At this point he will determine whether the relationship with the client can be terminated. 22. His vocational rehabilitation treatment plans are rarely if ever changed by anyone above him. If they are questioned by his supervisor or one of his colleagues, he defends his position. 23. He must also submit his recommendations for COMSOC training funds through. a selection committee process. This involves presenting to his supervisor a complete history of the case and his recommendations. 24. He testified about his involvement in the community where he "liaises" with employers and is an active member of an intra-agency vocational placement committee consisting of 10 - 20 community agencies. 25. A representative from the Ministry of Health is also on this committee, being Mr. Ken Wasky, who is the representative Grievor from Thunder Bay. 53 - 26. He does not have any of the degrees listed under the "skills and knowledge" portion of his position specification, but does have the other skills listed. 27. During cross-examination, he agreed that~ he wars "grandfathered" into his present classification, but on re- examination stated that he was not certain about what that term meant because no'one had explained it to him before. 28. Only vocationa 20 to 30 per cent of his clients have a realistic 1 goal. 29. His overall success rate was 45 per cent, although he had less success with his clients who suffered from psychiatric problems. 30. He has been employed by COMSOC since 1970 and had been grandfathered into his current position for about 10 years before the date when he cjave evidence. His previous position did not require a degree in social work and he was then classified as a Rehabilitation Officer 2 (Corrections). Ten years ago his'~position specification was rewritten to require a degree in social work or the equivalent and his position was reclassified as SW2, but he was permitted to keep the position without having professional social work qualifications. He stated that he was the only person in his office occupying the position without a social work degree. 54 g Usa e W'tnes ee Haines Mr. Haines was called as the second "usage" witness on the ninth day of the hearing that took place on July 16, 1990. He testified as follows: 1. He works in Brockville for COMSOC as a VRS and is classified as an SW2. ,He has a Bachelor of Arts with a major in sociology from McMaster University and also has a Bachelor of Social Work from that institution. 2. He measures the success of his clients on the basis of their potential, and success may exist in cases where the client is successful in obtaining competitive employment or where the client is successful in working on a job in a sheltered workshop. 3. He stated that his case.load was made up of approximately 45 clients with the following composition: 40 - 45% - physically disabled; 35% - addicted; 10% - developmentally handicapped; and 10% - psychiatrically disabled 4. He identified his referrals as coming from the following sources: self-referral; income maintenance programs, e.g. Family Benefits and/or General Welfare Assistance; _I - insurance companies; recovery homes; i 55 hospitals, both general and Brockville Psychiatric hospital; and Arthritis Society and similar organisations. 5. Before he can accept a referral he must receive a Form 4 signed by a physician. The form contains the doctor's opinion with respect. to the type of disability, factors'affecting employment, as well as whether the client may work or commence training. 6. He explained duty number one on Exhibit 38: 'I... diagnoses the psycho-social consequences . ..." as involving the "internal environment of the client and the external environment." His mandate is to focus on the vocational goal. 7. He does not conduct family therapy. 8. He makes referrals to other disciplines, including social workers for in-depth counselling. 9. He described the information he collects from clients: he assembles the client work and educational history, including dates, specific jobs performed and any problems encountered by the client. He also collects a "social and family" history, which he stated is "not ~necessarily terribly extensive." The history includes: source of income; information on family, i.e., marital status, children; and whether.family is supportive. 56 10. He includes a list of the client's disabilities and the functional losses from these disabilities. He tries to get the following information from the client: ‘the implications of the disability, and how the client perceives him or herself to be handicapped. 11. His work entails counselling clients and planning realistic / vocational goals. He explained the importance of counselling is crucial to achieve results and to establish rapport. 12. He sat on a number of community boards, such as the Advisory Committee for Rehabilitation Worker program at St. Lawrence College of which he was the chairperson. He regarded sitting on community boards as being part of the functions he is expected to fulfil. 13. His supervisor, Detleff Stein works in a different office in Kingston, Ontario. 14. He described his supervision by Mr. Stein: When I develop a plan, assessment requests go to my supervisor for approval. If it is for a first ,time training program or a restoration request beyond$2,500, the request goes to a Selection Committee - which at the present time is comprised of two VRS supervisors and occasionally, the Direct Services Manager. The Selection Committee reviews the vocational goal and plan and my recommendations. Their expectation is that the plan would be realistic and sound. 15. In his opinion a Bachelor of Social Work degree is not necessary to perform his job. He said it is a good background to (:.; 57 have: however, some of his colleagues do not have a social work degree and they function effectively in the same job ;as he performs. .16. He does not need a doctor's approval to implement a vocational plan, although two to three years ago this was statutorily mandated. 17. He consults with other disciplines if he has made referrals, to get specific information with respect to his clients. 18. He attends staff meetings every two weeks and consults with Mr. Stein over the phone once or twice a month. 19. In his opinion the sort of skills he acquired in the course of obtaining his BSW were "not necessary as an absolute requirement because people 'who don't have it are effective . . . they learn ads they go along . . . [I've1 seen people do good work without it." 20. The purpose of his job is to determine whether his clients "fit the guidelines for eligibility and feasibility for funding under the VTRehabilitationServices He estimated that approximately 40 per 'cent of his time is spent on "administrative work," being the writing, up of reports to his supervisor and to the Selection Committee in which recommendations 58 are made for funding under the latter A& and in preparing for hearings before the board which adjudicates requests for funding. 21. In direct examination he testified that he would not be involved in therapy "in a big way." On cross-examination he acknowledged that he would use his socialwork skills in a "general way. " f Evidence of Detlef e Haines Mr. Stein was called by the Employer and testified as follows: 1. He holds the position of Social Services Supervisor in the Kingston area office of COMSOC. Prior to being employed at COMSOC, he was employed by the Federal Health Project for two and a.half years, as a social worker as a primary care counsellor. 2. He holds a Master of Social Work degree from Wilfred Laurier University and also holds a Bachelor of Arts in psychology from that institution. 3. COMSOC is divided into four regions, his being the south-east region with .an area office in Kingston. There are three local offices within the Kingston area, being Kingston, Belleville and Brockville. 59 4. He described the authority structure within the Kingston area of COMSOC, with himself and a colleague, Carol Potter, at the Belleville office reporting to a Direct Service Manager who is in charge of the Vocational Rehabilitation Service program and the Income Maintenance program for the Ministry. The Direct Service Manager is a member of the Kingston area.management team as is Mr. Stein. The Direct Service Manager reports to the Area Manager who is the chief in the Kingston area (Regional Manager). 5. Mr. Haines is the only person associated with the Vocational Rehabilitation Service program located in Brockville. There is-a full-time counsellor working in the Perth office which is a sub- office of the .Brockville office. 6. In 1987 - 88 he met "face-to-face" with Mr. Haines approximately once every three weeks and on a more irregular basis to provide clinical supervision and case consultation. He also conducted annual performance appraisals and semi-annual case, reviews. 7. The VRS staff meet every three weeks for one half day to' discuss a range of issues including legislative changes and a variety of issues involving the provision of vocational counselling to persons with disabilities. It was not usual~ to discuss particular cases at the staff meeting immediately above described. 60 8. He estimated that he met with Mr. Haines to conduct clinical supervision and case consultation about four times a year, and that each meeting took between two and three hours. 9. He estimated that he had phone consultations with Mr. Haines about once every two weeks. 10. Clinical supervision of Mr. Haines involves an assessment of his style and manner of counselling and the way in which he interacted with clients. 11. Case consultation involved such matters as discussing a client's progress. 12. The irregular meetings that he referred to could be initiated either by himself or by Mr. Haines. 13.~ The annual performance appraisal lasts for approximately two hours. 14. The semi-annual case review lasts for between one half to one day, and it provides an~opportunity to look at individual cases to determine if the counsellor is "generally on-stream . ..". Each case handled by a counsellor was reviewed twice a year. 61 15. The telephone consultations were usually initiated by the counsellor and took between five and thirty minutes. , 16. In referring to the first appointment interview, Mr. Stein testified that a large part of the information obtained from the client "is considered psychosocial assessment." The range of information obtained consists of: educational background; employment, background; family relationship; description of support system; extent of personal adjustment to disability; identification of the disability and the functional loss related to it; history of hospitalisation; current medication; prognosis for the disabling condition; economic situation; nature and source of income; and any background of child abuse, depression, suicidal tendencies or addiction. 17: The purpose of the first and subsequent interviews is to determine the eligibility of the client as well as to begin to determine the feasibility for vocational rehabilitation. 18. He defined eligibility and feasibility. Eligibility under the Vocat'ona < t ("m") consists of three factors: medical description of.the disability; functional loss and the vocational handicap as a result of the severity of the functional loss. The description of the disability and the functional loss is defined by the physician. Functional loss 62 refers to physical limitations of the disability and may include severe depression and other emotional disorders. i 19. The statement of eligibility is essentially a summary statement which combines the description of the disability, functional loss.and the vocational handicap. I 20. The client's vocational handicap must include the relationship between the disability, functional loss and the degree to which the client is capable of pursuing substantial gainful work. 21. The statement of eligibility is essentially a summary statement which combines the description of the disability, functional loss and the vocational handicap. 22. He reviews the statement of eligibility when a counsellor makes a request for a program for the client. The 'counsellor makes the determination with respect to a client's eligibility and feasibility for VRS services and the supervisor "... essentially signs off" as the supervisor is accountable, not the counsellor. 23. The counsellor submits to him a request for a range of programs, including assessment programs, such as employer assessments and educational and pre-vocational assessments, as well as training,programs and supportive services and/or restoration 63 equipment. He reviews a submission for approval based on his assessment of the logic of the request. 24. His "deferral" rate of a counsellor's "service request" (recommendation) was expected to be no more than five per cent. A 'deferral occurs when the counsellor's request is deferred by his/he,r supervisor with a request. for further information or clarification. 25. Where a request is submitted and training is required or where over a certain amount of funds is needed (2,.500 in 1977/88), the matter may be sent to the "Selection Committee" which performs a review similar to that conducted by himself. 26. The length of interviews is approximately one hour. On occasion, the client and his/her counsellor may meet several times a week. The average length of a counselling relationship is between six months and two years. 27. During the early meetings in the relationship between the counsellor and the client, the counsellor will conduct counselling sessions where vocational goals and vocational plans are established. 28. After a client has become involved either in an assessment or training program, the counsellor will maintain a monitoring role 64 during which the vocational plan may have to be changed depending on the client's progress. 29. The counsellor is responsible to determine the ongoing eligibility of the client and the ongoing, feasibility of the relationship being maintained. 30. Towards the end of a proscribed vocational or rehabilitation program, the counselling sessions focus on determining when the relationship ought to be terminated: referred to 'as "closure." 31. Counsellors may consu,lt with a number of people, including a client's famil'y and professional agents in the community, but are not required to do so. 32. Counsellors may employ any technique that will help the client to determine his or her vocational goals and that will assist the ,counsellor in learning about 'the client's disability and psychosocial background. He divided these skills into: social work skills/practice; vocational rehabilitation ski1 33. He defined social work skills 1s. as follo"s: . . . variety of psychosocial assessment skills, diagnostic skills, ability to provide a range of counselling services, perhaps therapeutic intervention, the ability to be aware of and pull together community resources, excellent communication skills, both written and verbal, ability to grasp or understand the client's status at the 65 time of counselling session and the ability to use whatever resources to derive a treatment plan, the knowledge and understanding of a variety of intervention techniques, general knowledge of human service legislation and policies. 34. He defined "psychosocial assessment/diagnostic skills": . . . within vocational rehabilitation assessment skills . . . an ability to pull together a wide variety of pieces of informationwhich would include:~ personal; social; family; and economic data and be able to synthesize~that information to derive a picture of the client's environment. 35. He referred to diagnostic skills: II... diagnostic to the degree that he'or she can make sense of the disability and bow that disability relates to the psychosocial picture." 36. He defined counselling services: . . . typically counselling whi~ch constitutes the development of a vocational goal and a plan of action. 37. He defined "vocational skills," as relating II... to the development of a vocational plan with the client . ..II and ".:. monitoring and evaluation of the rehabilitation process." 38. He explained that vocational counselling involves social work skills as well as rehabilitation skills. i. c.: : 66 39. Other vocational skills are "liaising with other vocational entities in the community . .." and interacting with employers for the purposes of arranging employer assessments, work experience or training-on-the-job.programs. He stated that social work skills are more related to clinical issues such as: depression; a range of family dynamics which present obstacles for the client. 40. In response to the range of problems encountered, the counsellor's intervention may involve: providing supportive counselling around the depression or fears; Iiaising with a follow-up team from a psychiatric hospital; and looking into a supportive vocational assessment opportunity. 41. He defined "supportive counselling": III put that more under the roof of the social work skills for example enabling a client or providing the kind of counselling environment that enables the client to speak more or less' freely around the obstacles and issues around his or her life. To do this the counsellor with a social work background might draw on a number of specific counselling techniques, depending on the sophistication of the client she or he is dealing with. ' Those techniques' could be described as reflective, empathetic or Rogerian; essentially using a great deal of empathy and 'mirroring' providing a client with a maximum supportive atmosphere, non-confrontative, non- directive approach. The term "Rogerian" refers to a non-directive therapy approach developed by Clark Rogers. 67 42. He also added that the variety of techniques employed by counsellors include "reality therapy" and the "behayioral approach." He regarded therapeutic intervention as being different from counsel ling. . . He defined therapeutic interventions: 43. He stated that contact with the family was for the purpose of That was the vocational counselling aspect. There's extensive supportive kinds of counselling as well which I believe differs from therapy in that therapy entails a kind of intervention that brings about permanent change within an individual's functioning. Although VRS counsellors may have.the capacity and skills to provide this kind of service, it is not expected in their job description. Supportive counselling, that is helping the client identify issues in their lives, particularly in relation to vocational rehabilitation process . . . determining financial status of the client and to assist in the determination of feasibility. 44. a counsellor would usually spend a half an hour to three hours preparing documentation for the Select Committee, depending on the complexity of the case. On average a counsellor will be required to prepared documentation for one Select Committee recommendation every two weeks. 45. Mr. Stein was cross-examined. on the eighteenth day of the hearing being December 6, 1991. 68 46. He agreed that the focus of Mr.~ Haines' job is vocational rehabilitation which emphasises the .vocational potential of clients. He agreed that clients require vocational rehabilitation because of their disabilities which include physical, emotional, developmental, addiction and psychiatric handicaps. 47. He agreed that Exhibit 38 (Mr. Haines' position specification) accurately sets out his duties and responsibilities. 48. He also agreed that Exhibit 39, form 4, must be filled out before a client can receive services and that for the most part the form will set out the client's limitations. 49. He agreed that.Mr. Haines is not required to carry out family therapy. 50. He agreed that the focus of a social history is on vocational rehabilitation and that a family history consists of whether the client is married, has children, where s/he is living and whether his/her family is supportive of the client's vocational goals. 51. His conduct of the case review of Mr. Haines' entire case load, which occurs twice a year, is in the nature of clinical supervision and is necessary to ensure that Mr. Haines is doing a , proper job. 69 52. He agreed that Mr. Haines consults with other professionals who are involved with the client. ,' 53. Where Mr. Haines determines, in the course of an interview, that a client had a history of child abuse, depression and/or suicidal tendencies, he can make a referral to a social worker, with the client's consent. He agreed that Mr. Haines was not expected to carry out in-depth counselling. 54. He defined the term "psychosocial" in the context of the counsellor completing eligibility requirements for a client with schizophrenia. He described the "functional loss" associated with this disability, as "... What is it about the disability that providesobstacles to that person in daily living which includes relationships with others, the person's own thoughts, the person's own. sense and feelings about themselves, the person's level of awareness and response to his psychosocial and economicenvironment . . . . " This area: . . . refers mostly to the relationship that person has with his or her family or support system and his or her mental process and feelings about his or her condition or self; perhaps how he or she relates ~to his or her environment, be that in a vocational or social setting. The counsellor would also look at any prevalence of thought disorder, hallucinations, delusional thinking, feelings of paranoia and any .other thought processes which would be seen as interfering with his or her daily functioning. 55. He described what Mr. Haines does when engaging in "supportive counselling": 70 ..* hearing and listening to the client‘s issues and concerns, responding to those concerns by' balancing the client's needs with what is possible within the legislation under which he [Hainesl works. 56. He defined "reality therapy": . . . frequently clients come to him [Hainesl with a certain vocational goal and that goal may not be feasible and would require interaction between the counsellor and client to determine what the realities are.~ Mr. Stein explained that reality therapy could be considered a behavioral .approach and acknowledged that Mr. Haines was not expected to engage fin such therapy. 57. He identified community services that Mr. Haines could refer clients to, such as Brockville Community workshop, ARC Industries and supported employment. 58. He defined "psychosocial assessment" as a process of observation, ".,. gathering, facts verbally and what is observed; Haines would also gather facts from documentation." He agreed that the purpose of psychosocial assessment is to. gather enough information to understand the client and his problems, He further stated that the ultimate purpose of psychosocial assessment is to guide treatment wisely in the vocational area. He agreed that the vocational rehabilitation plan is a form 'of treatment, and described Mr. Haines' diagnosis as his professional opinion about the facts he has gathered. 71 .59. In re-examination, he clarified his earlier evidence concerning Mr. Haines providing in-depth counselling:. i He [Hainesl would not be expected to provide a series of therapeutic sessions/interventions for the treatment of depression. He would not be expected to be the agent of therapeutic help which would render the client able.to overcome depression. Rather, he would be expected to be sensitive to the client's concerns around the depression and the degree to which the depression interferes with vocational rehabilitation. 60. In his view, Mr. Haines could determine whether the client required in-depth counselling and that, in.his opinion, represented Mr. Haines using social work skills to make this determination.. 61. VRS counsellors are required to use social work skills and techniques and he gave specific examples (,towards the end of his examination-in-chief). During cross-examination, Mr. Stein stated that the. social histories which Mr. Haines prepares following an initial interview would not be complete if .they dealt only with vocational and educational matters. Vocational and educational history constitutes "less than 50 per cent" of the social history. c Sta d rds The Union made the following submissions in its standards argument: 1. The R02 class standard does not contemplate the level of independence of the Grievers. They do not perform their 72 responsibilities for the client's vocationa 1 rehabilitation, "in conjunction with other hospital staff" (para.2). 2. The standard does not reflect: then Grievers's therapeutic role, counselling (both individual and group) role, building rapport, prime responsibility for vocational treatment, assessment, follow-up and monitoring. 3. Then standard does not reflect the counsellors' role as the vocational rehabilitation expert on the ~clinical ward treatment team, nor does it accurately reflect their role in the community as educators, both within and without the hospital, with reference being made to the supervision of social work and vocational rehabilitation students. ,A. The ,extent and importance of this therapeutics role as an independent expert on the clinical ward treatment team is reflected in Charbonneau et al., 1265/88 (Watters), which deals with Recreation Therapists. 5. The SW2 standard is the appropriate classification for the Grievors. That standard does not specifically require any academic credentials. If it does, Exhibit 31 (the Credentialism Policy) operates so that it is unnecessary for the Grievers to have academic credentials as social.workers. They were said ,to work under general supervision, conduct interviews, complete social 73 (vocational and educational) histories, and formulate psychosocial diagnosis (or "assessment") of the personal and environmental .causes of social dysfunctioning. 6. The Grievors were said to assess their clients' vocational handicaps due to their disabilities, both physical, mental, and emotional, taking into consideration the clients' own perception of their disabilities. 7. The Grievors were said to implement vocational treatment plans to assist their clients to resolve their vocational handicaps; - 8. They evaluate the effectiveness of the treatment plan (the vocational plan) and modify or revise it as necessary. 9: They consult with members of other professional disciplines and serve as members of treatment teams as well as institutional and community committees. 10. They participate in conferences and group discussions, interpret departmental policy and objectives, and maintain liaison with other disciplines, jurisdictions, and community agencies. 11. Some of the Grievors assist in the training of departmental personnel and students in social service courses. (.I . . 74 12. We were asked to find that the meaning of "social work"~and the meaning of "psychosocial .diagnosis" in the vocational rehabilitation context was not assisted by the Employer's expert, Dr. Wattie, as she had no expertise in this area. Reference was made to the testimony and documentary evidence put forward by both the Union and the Employer, which was said to give ample.support to the claim that the Grievors were performing social work. Functioning in the workplace is a social activity, requiring interpersonal skills. The Grievors assist their clients .in attaining maximum social functioning in the vocational context-. 13. The Grievers use "supportive counsellincj," "reality therapy," "contracts," and "crisis-counselling"; all of which were said to be social work methods appropriate to the functions of the department and service. 14. They engage in some family counselling but do not do any in- depth counselling of any sort. Reference was made to the Vocational Rehabilitation Service counsellors at COMSOC who were also said not to do any in-depth counselling which was not appropriate in the vocational context. 15. In the alternative, if the Board was not persuaded that the Grievors should be properly classified as SW2, the Union requested a w Order. !:. , 75 16. U 'on' L os't'o ilitat' is ecies of Social Work The evidence presented, indicated that vocational rehabilitation counselling in Canada is a comparatively new discipline in terms of formal recognition and availability of training programs. The representative Grievo~r from the Hamilton Psychiatric Hospital, Patrick McKenna, gave a brief historical description of vocational rehabilitation, which is set, out at pp. l-3 of Exhibit 27. He regarded vocational rehabilitation as having a focus of assisting clients to make a proper social adjustment in the workplace. Exhibit 27 is a document entitled Rehabilitation Counsellino Trainina Manual and is copyrighted under Mr..McKenna's name. The document was prepared for use in the Rehabilitation Services Department of the Hamilton Psychiatric Hospital, and it bears the date: September 1986. Mr. McKenna has a Bachelor of Arts and a Master of Education degree, although his university training was not in the area of either social work or vocational rehabilitation. It was the position of the Union that the focus of vocational rehabilitation dictated its recognition as a species of social work and as a subset oft overall rehabilitation in mental health, reference being to the first five -paragraphs of p-17 of Exhibit 27. The Union relied on the definition of social worker in the Oxford 9 Diet ‘o ish, ~~713, as a person engaged in (1 ,,” 76 organized work to alleviate social problems. The Union also relied on the statement contained at p.222 of Exhibit 64 in relation to social workers, that they "help people increase their capacities for problem-solving and coping . . . ." Also relying on the definition found in Exhibit 64, counsel for the Union submitted that social work was an amorphous category of professional assistance to people to assist in satisfactory and smooth social functioning. She also noted that social work was not legally defined, nor was it a profession regulated by government. She regarded social work to include activities along a continuum from guidance counselling to intensive psychotherapy. She stated that social workers'specialize in many areas, examples given being, family, marriage, and vocationa~l counselling. Relying on the voluminous evidence given by the various "representative" witnesses, counsel submitted that' vocational counselling had a specific objective being the employment of the client to the best of his or her ability or the achievement of maximum functioning. The objective might be met by supported employment or recreational activities as well as by unsupported employment. Vocational rehabilitation was said to satisfy the underlying objective of all kinds of "social" work, being to interact well with and have respect for people as well as oneself, all of which requires strong self-esteem., she concluded: I t,. i: i:-: 77 "Consequently all social work is a process of increasing self- knowledge and changing thought processes and behaviour." E mpl 0 e 's S 's Standards A ments Counsel for the Employer made the following submissions: 1. The Grievors do not perform a number of the key duties and are not required to exercise the knowledge and skills which bring a position within the SW2 standard. In particular: (i) the Grievers do not "compile social histories"; (ii). the Grievers do not "formulate psychosocial diagnos(e)s of the personal and environmental causes of social dysfunctioning"; (iii) they do not "implement treatment plans" to "treat... the underlying causes of social dysfunctioning, both personal and environmental"; and (iv) they do not employ Isocial work methods". 2. The Employer did not rely on the fact that the Grievors do not have a degree in social work. Counsel for the Employer relied on the evidence of Dr. Wattie as supportive of her conclusions, and she stated that the Grievors had acknowledged that the focus of their interviews with clients was on educational and work history. 78 3. It was submitted that the evidence had demonstrated that the Grievors did not make judgments as to the nature of their clients' r' psychosocial problems. They described the vocational obskcles faced by their clients but did not purport to "formulate psychosocial diagnos(e)s of the personal and environmental causes of social dysfunctioning." 4. The Employer did not dispute that the Grievors make a significant contribution to a client's overall treatment plan,~ however, it was submitted that the part of the plan developed by them is not designed to "treat . . . the underlying causes of social dysfunctioning, both personal and environmental." The vocational component of a plan was said to be designed to address certain specific vocational obstacles. It was noted that the Grievors had referred to their production of a "vocational plan" and not a "treatment plan." It was submitted that this was a'recognition of the fact that a treatment plan addresses both the causes and the effects of a broad range of personal and environmental problems and that a vocational plan does not. 5. The R02 Standard Counsel for the Employer made the following submissions in response to the argument of the Union that the R02 standard does 79 not adequately capture the duties of the Grievors in the following respects: , ( in) it does not contemplate the level of independence of the Grievors; (ii) it does not reflect the counselling function of the Grievers and their contributions to the treatment team; and 1 it does not acknowledge the role of the R02 in the community: (iii (i) the Grievers are supervised administratively and also by the clinical team; (ii) the R02 standard acknowledges that the Grievor8 perform a rehabilitative function; and (iii)the RO2 standard adequately reflects the community aspect of the Grievers' job. (i) supe With the exceptions noted below, the Employer took no real issue with the facts set out in the Union's submission with respect to the nature of the administrative supervision of the Grievor8 and added that, generally speaking, the Grievor-s report to Supervisors with whom they meet routinely at least weekly, and in some cases daily, and are available at all times to discuss problem cases. The Grievors were said to operate within a highly formal structure, following established steps set out in the various manuals, using detailed forms. Reference was made to Exhibits 7, 8, 12, 13, 14, 17, 18, 19, 27, 33,~ 34, 42. 48, 49. 55. 56, 58, 59, 1 supervision" of an and 60. This was said to constitute "genera adminis.trative nature. 80 It was also submitted that the Grievors' work was "effectively supervised by the clinical teams." "General supervision," within the meaning of the class standard, was said not to be "administrative" supervision alone but might also include "clinical" supervision. (ii) Rehabilitation in Counselling Counsel for the Employer submitted that the R02 standard encompasses positions in which employees, are involved in therapeutic activities. It was pointed out that the class standard says that: "(iln conjunction with other hospital staff, these employees reviewed the medical, educational and work background of individual cases; appraise aptitude; discuss tentative programs with clinical staff .and decide on a realistic individual vocational rehabilitation programme." This was said to represent "a concise and accurate description of the core duties of the Grievers." .In response to the union position that the standard does not reflect the role of the R02 as the "vocational rehabilitation expert" on the clinical team, because the standard uses the term "tentative" .plans, counsel for the Employer. responded that the i 81 standard also states that the employee is the one who "decides" on the vocational plan that is presented to the clinical team. It was , also submitted that the reference in the standard to "tentative" programmes is correct, because it is clear that the vocational plan must be presented to and accepted by the clinical team as part of the overall treatment plan. Reference was made to Ms. Watts' evidence in cross-examination, that the vocational plan is "tentative" until it has been presented to the clinical team. The standard also says that the employees are to create "individual" programs. The programs are to be "rehabilitatioq" programs. The standard specifically requires that employees whose positions are covered by it provide follow-up "counselling." Counsel for the Employer acknowledged that the.re has been an increasing emphasis in recent years on rehabilitation of patients in psychiatric hospitals, and this includes vocational rehabilitation. However, a number of witnesses acknowledged that the hospitals are some way from ful,ly achieving that goal. It was submitted that in the light of the realistic potential for the exercise of a rehabilitative function, the RO standard recognises such function. (iii) Communitv Involvement 82 The purpose of the position, as stated in the standard, is to prepare patients "for re-employment within the community." The ,I standard states that rehabilitation counsellors will work not? only with in-patients but also with "out-patients or ex-patients." The standard expressly requires liaison with "community agencies." In addition, the standard requires vocational counsellors to come into contact with the "public" in order to "promote . . . understanding and acceptance of the mentally ill or retarded." We were asked to read the class standard in a broad, general and flexible way, and not as a job description. It was emphasixed that class standards are designed to describe broad categories rather than specific jobs, and we were asked to find that the RO standard is clearly broad enough to:encompass the position of the Grievors. The Usage Test for Reclassification As an alternative position, the Union argued that if the Board finds that the SW2 standard is inappropriate, the Grievers are entitled to be reclassified based on an application of the usage test. This argument was based on the claim that the Employer has altered its classification system by classifying the "usage" witnesses in Weand and the "usage" witnesses in this case, Messrs. Haines and Rogers, as SW2's. ( i 83 A g Usa e elvina on the Evidence With Respect to Lee Haines and Jim Roaers Counsel for the Union argued: 1. That the Union had brought forward persuasive evidence that the vocational work performed by the Grievers was substantially the same as that performed by the COMSOC comparators Lee Haines from Brockville and Jim Rogers from Thunder Bay. The clinical tasks or core functions and responsibilities performed by Messrs. Haines and Rogers were said to be virtually identical to those performed by the Grievers. 2. Neither Messrs. Haines' nor Rogers' work required the higher order of professional social work skills and functioning as are exPected by the SW2 class standard. 3. Mr. Rogers does not possess a social work degree. 4. Referring to the usage witnesses in Wallace and Jackson, and the usage witnesses, Messrs. Haines and Rogers, all of whom are classified as SW~, it was submitted that the Employer had not brought forward persuasive evidence that there were needs of the client population at issue that went beyond the vocational and which required the higher order of professional social work skills and functioning expected under the SW~ class standard. 84 5. The only evidence said to be before the Board germane to this issue was that of Dr. Wattie, who testified that the vocational and ,' educational history was not a "social history" due to its lack of comprehensiveness. It was submitted that Dr. Wattie lacked expertise in this area and her evidence ought not to be accepted. 6. In the alternative, it was submitted that if the Board found Dr. Wattie's evidence persuasive, her opinion of vocational rehabilitation and social work would apply equally to the usage witnesses, Messrs. Wallace and.Jackson and to the Grievors. 7. It was submitted that the documenta~ry evidence illustrated the similarity in. the Grievers' duties and those of the "usage" witnesses. Reference was made to the position specifications (Exhibit 4A-1, Exs. 29 and 38) and the policies and procedure documentation, namely Exs.12-14, 18, 19, 27, 33, 34, 4OA, 40B, 42, and 60, which were said to reveal a striking similarity amongst the Grievors' and the usage witnesses' core duties, regardless of their place of employment; those core duties being the treatment of individual clients with handicaps that impede their vocational functioning. 8. The .test for the classification argument based on the "usage" approach is whether the Grievers' duties are substantially similar. The following cases were relied upon: (a) QPSEU ( allace an .d Health ?274/84), Gorsky, 0 April 29, 1987. 85 (b) vlor et al) and ustry of Heau (478/85), Brent, October 21st. 1987. CC (d 1 OPSEU v. The Oueen in ReofOntario.(High Court of Justice) 40 O.R. (2d) November 22, 1982. ) OPS U Ba I )( et a General (891/85), Samuels, March 240, the tto 1987. 9. It was submitted that the Grievors, the "usage" witnesses Haines and Rogers, Messrs. Wallace and Jackson, and the "usage" witnesses" who testified during the hearing of Wallace and Jackson, all perform substantially the same duties. Those duties were summarized as follows: (i) they focus on the vocational potential and needs o-f their client population and are responsible for formulating the vocational treatment plan with their clients; (ii) their client population is made up of persons requiring vocational rehabilitation as a result of physical, emotional and mental disability; (iii) they go through the same assessment exercise of their clients and go through a similar exercise in utilizing resources to carry out a client assessment; (iv) they are all responsible for identifying educational assessment and training programs and for assisting their clients in the vocational aspects of the program and in moving to jobs, if they are able to do so; (v) they are all responsible for carrying out placements in programs, training, job placement, pre-vocation and life skills; (vi) they are all responsible for assessing their clients' potential, identifying suitable programs and access to work situations, monitoring clients, assisting clients to work through problems which arise during the formation and completion of the vocational treatment plan; 86 (vii) they all focus on the individual client's program and are responsible for endeavouring to meet the client's vocational needs; (viii ) they utilise the many facilities available at.>their respective psychiatric hospitals, and where such facilities are not available, they are required to seek out existing facilities in the community; (ix) they utilize funding available through Canada Manpower and other public funding agencies; (x) they work with a mix of in-and-out patients, with in-patients going out into the community to take advantage or resources and programs; (xi),they are subject to very little immediate (xii (xiii (xiv (xv supervision; they work virtually independently, with their cases being reviewed once a month (or less or not at all in some cases); they obtain and exchange information during periodic team meetings with respect to individual clients; they do not obtain orders or direction but are merely in ,receipt of suggestions; and while they most often receive referrals from the psychiatrists, it is their responsibility to prepare the vocational rehabilitation assessment, to design the vocational treatment plan, and to carry out the assessment plan and the, monitoring, with little direct intervention. 10. It was submitted that the evidence of the usage witnesses and that of Mr. Stein supported a conclusion that the Employer had amended its SW2 standard by not requiring that SW2's who perform vocational rehabilitation duties for COMSOC, compile social histories, formulate psychosocial diagnoses, implement treatment plans, or employ "social work methods." 87 11. We were asked to find, if we accepted the evidence of Dr. Wattie, that the usage witnesses were not properly classified as 8 sw21.3, as according to her testimony their vocational histories were not "social" histories, they did not formulate psychosocial diagnoses and did not implement treatment plans to 'I.:. treat . . . the underlying causes of social ,dysfunctioning, both personal and environmental," nor did they employ social work methods. This was said to be "the nub of the Union's usage argument." 12. It was submitted that Mr. Stein had been unsuccessful in his attempt to differentiate .social work skill/practice in the vocational context and rehabilitation skills. According to his definition of .social work, the Grievor-s all perform social work duties and employ social work methods, such as "supportive counselling" and "reality therapy." He also stated that Mr. Haines .was not expected to perform therapeutic interventions nor was he expected to perform therapy as he.defined it. 13. Mr. Stein set out what information Mr. Haines collects and his evidence corroborated that of the usage witnesses to demonstrate that they do not compile in-depth family histories; rather the information they collect is similar in content to that which the Grievers collect. The family information both the Grievors and the usage witnesses collect is information relevant in the vocational context. 88 14. We were also asked to find that the definition of social work skills and the definition of psychosocial assessment/diagnostic 2 skills given by Mr. Stein demonstrated that the Grievors and the usage witnesses performed the same tasks. 15. In referring to psychosocial diagnosis, counsel for the Union submitted that the Grievors make the same judgments as to the nature of their clients' psychosocial problems as these pertain to the vocational context. It was argued, in any event, that the Grievor6 make the same kind of judgments as the usage witnesses; for example they make judgments as to their clients' ability t-o realistically accept their disabilities and the impact this self- knowledge has on the clients' vocational potential. 16. It was submitted that it was irrelevant that Mr. Rogers may have been "grandfathered," in the sense that.he was classified as an SW2 even though he was not a professional social worker when the other VRS employees at COMSOC were made SW2's. It, was submitted that the, Employer had the option of arguing that Mr. Rogers was improperly classified but did not do so. We were asked to give weight to the fact that the Grievors perform substantially the same duties and have substantially the same responsibilities as does Mr. Rogers,.and that this entitles them to reclassification. 89 17. Although Mr. Rogers testified that he was the. "... only person in the position without a social work degree," the Union submitted , that this was not relevant. 18. In the alternative, should the Board find that this is relevant, we were asked to note that Mr. Haines testified that some of his colleagues did not have a BSW degree and that they function effectively on the job. Bge Arquments e s and Roae Counsel for the Employer made the following arguments: 1~. The onus is on the Union to show that the Gr i substantially the same as those of Messrs. Haines 2. Counsel relied on E ward Ms 11/78 evors' jobs are. and Rogers. tilt is particularly difficult to design c.lassifications for jobs involving paraprofessionals, the situation in the present case. Routine jobs on a production line can often be distinguished by brightly drawn lines, with the job of a person responsible for the operation of a punch press easily distinguished from the job of a person keeping him supplied with material. In contrast, with paraprofessionals, and particularly with regard~to those providing services to other people, as in the welfare and medical fields, it is often difficult to draw bright lines between different levels of jobs. The tasks performed by individuals in different classifications may appear very similar, yet it must bc kept in mind that the classifications have been designed for a purpose - whether to reflect different emphases with regard to the similar tasks, or to reflect greater discretion or 90 responsibility by those in one of the classifications, or to reflect the higher qualifications.demanded of those in the more seniorclassification." (Re OPSEU Edwards and Molonev and Ministrv of Communitv and Social Services, GSB #11/78 (Swinton) at p.11) 3. Counsel noted that the approach to, remedial authority of the Board in classification cases followed in Edwards was rejected in the Brecht case (OP U v. the 7 et al., (1982), 40 O.R. (2d) 142 (Div. Ct.)). However, the Edwards and approach to the comparison of positions continued to be followed post-Brecht; for example in wet 603/81 (Draper). 4. In Aikins, the proposition advanced by the union came "down to the claim that recreational work is recreational work whenever, wherever and for whomever it is performed and properly belongs to one class series." The Board adopted Edwards and Molonev (at p.8) and stated (at p.9) that: "(j)obs in broad occupational categories, / are commonly differentiated by qualifications, purpose, complexity, responsibility, organisational structure and other criteria", and that "(s)such criteria, together with the actual tasks assigned, define the 'nature of the work performed". The Board also observed that the Edwards and Maloney approach to the comparison of positions had been used in &,e&& itself without criticism from the .Divisional Court. 5. Counsel noted Mr. Haines' evidence that the purpose of his job was to determine whether his clients "fit the 'guidelines for i ! 91 eligibility and feasibility for funding under the Vocational Rehabilitation Services Act." , 6. Counsel also referred to Mr. Haines' estimate that approximately 40 per cent of his time was spent on "administrative" work, as above referred to in his evidence. This alone was said to be sufficient to distinguish the job of Messrs. Haines and Rogers from the job of the Grievers. 7. It was also submitted that in contrast to the Grievers Messrs. Haines and Rogers do not deal with many psychiatrically disturbed persons. It was submitted that their clients would be in the community and. function at a higher level than the Grievor-s' clients. 8. It was also' submitted that Mr. Haines' and Mr. Rogers' organizational structure gave them a great deal more discretion, responsibility and independence than the Grievers. Reference was made to Mr. Haines being in Brockville and his supervisor Mr. Stein being in Kingston. Mr. Haines might see Mr. Stein at staff meetings which occur every two or three weeks and he might initiate a telephone conversation with Mr. Stein one or two times a month. 9. Reference was made to the fact that while Messrs. Haines and Rogers might consult with other disciplines when planning to make (.: 92 a referral to them, they testified that they were not obliged to consult with anyone but the client. ,' 10. While the application form is supported by a doctor's assessment, Messrs. Haines and Rogers were not under the ultimate authority of a physician. 11. They were not required to submit ~their vocational plans to,a clinical team and to have the plans accepted as part of an overall treatment plan. 12. The plans were submitted to their supervisor at a point where funding was required under the &&. The formal approval process was concerned primarily with eligibi,lity and feasibility and with the cost of the goods or services requested. 13. Counsel relied on Mr. Haines' evidence during cross- examination that he would use his social work skills in a "general way." 14. Counsel also relied on Mr. Stein's evidence-in-chief that VRS counsellors were required to use social work skills and techniques and on his evidence in cross-examination that the social histories which Messrs. Haines and Rogers were required to prepare following the initial interview would not be complete if they dealt only with CT i 93 vocational and educational matters, with vocational and educational history constituting less than 50 per cent of the history. 15. Counsel relied on the fact that Mr. Rogers, who did not have a degree in social work,.had been in a previous position which did not require a social work degree and was classified aS RG2 (Corrections), and that ten years previous'ly his position specification was re-written to require a degree insocial work or the equivalent and he was reclassified as SW2, and was permitted to keep the position without having the qualifications. . 16. Counsel also relied on Mr. Rogers' evidence that he was the only person in his position without a social work degree. 17. It was submitted that, in any event, the issue was not whether Messrs. Haines' and Rogers' "work required a ,higher order of professional social work skills and functioning." It was submitted that even if the positions occupied by Messrs. Haines and Rogers did not require social work knowledge, which was not admitted, that was insufficient to entitle the Grievers to obtain the same classification for their positions. For the Grievers to succeed on a usage argument, they must show not only that the qualifications, but also the emphasis, purpose, discretion, responsibility, organizational structure, and other criteria, such as patient population, together with the actual tasks performed are substantially the same as those of Messrs. Haines and Rogers. 94 18. It was submitted that taking into account all of these factors, the positions were not substantially the same. _I The Wallace and Jackson Aroument Submissions of Counsel for the Union Counsel for the Union submitted: 1. That the disposition of these grievances is determined by the result in Wallace and Jackson, 274/04 (Gorsky), which was a decision dated April 29, 1987 involving the same Ministry.. Although this Board would not likely be bound by the strict principles of stare decisis or m judicata, the jurisprudence of the Board requires parties seeking ~to convince the Board that a previous decision is not determinative of the issue at hand to show that the previous decision was "manifestly wrong." Cases referred to were: (a) OPSEIJ (Alarcon et al) and the Ministrv of Correctional Services (510/82), Roberts, September 27, 1985, pp.E-9. fbJ OPSEU (Hobman et all and Ministrv of Transportation land Communication (471/81), Roberts, October 21, 1987. p.1 and pp.3-4. (c) OPSEU Walb r 1 and Ministrv ~of Correctional ( e q et al Services (259/841, Delisle, January 15, 1987, p.2. (d) OPSEU (Bahl) d Ministrv of Attorney General (891/85), Samuaz, March 24, 1987, p.11. 2. The proper test, at this time, required the Employer to establish that the grievances before us represent "exceptional 95 circumstances" in comparison to Wallace and Jackson, reference being made to B ake et ;nand 1?76/87 . (Shime). 3. It was submitted that the Employer had not met the above tests. 4. The issues in the cases before us are identical to those in Wallace and Jackson, with the Grievors being said to perform exactly the same duties as those performed by the grievers Wallace and Jackson; the Employer being unsuccessful in proving any , material difference. 5. In .further support of its "usage" argument, it was submitted that in addition to the "usage" witnesses in this case, Wallace and Jackson and the yusage" witnesses in that case all performed substantially the same core duties, 'being duties (i) through (xv) referred to above at pp. 83-4. . The Emulover's Submissio s n.2 n iLtfLse Counsel for the Employer made the following submissions: 1. That this case has not been determined by Wallace and Jackson. 96 2. Wallace and Jackson was said to be a "usage" case only and not a standards case. (See pp.1, 4, and 18 of that Decision.) ,' 3. What was said to have been determined by the Board in Wallace and Jacksonwas that Messrs. Wallace and Jackson had substantially the same duties and responsibilities as a number of employees whose positions were classified as SW~. It was submitted that the case did not determine that the position of Wallace and Jackson came within the sW2 standard or that their position was not properly described by the R02 standard. 4. Accordingly, it was submitted that the wand Jackson case cannot answer the question of whether the position of the Grievers in this case comes within the SW2 standard or whether it is properly described by the R02 standard. 5. It was argued that for the same reason the Wallace and Jackson case cannot decide the usage argument in this case. The fact that Wallace and Jackson performed the same job as a number of employees whose position was classified as SW2 was said not to mean that the Grievors perform the same job as Messrs. Haines and Rogers. 6. There was said to be no basis for the argument that the Grievers perform the same duties as Messrs. Wallace and Jackson. We were asked to reject the submission of counsel for the Union that asked this panel of the Board to accept not only the finding 97 of the Board in W e, but also the evidence upon which that finding was based. It was submitted that the evidence ,I adduced in Walla C on is not evidence in this case. Accordingly, we were asked to find that there is no evidence in the case before us that Wallace and Jackson perform the duties set out in paragraphs Ci) to (xv), above referred to, and, therefore, there was no basis upon which to compare their duties to those of the Grievers. 7. Counsel regarded the Union position as being an acknowledgement that the principle of res judicata is not applicable in proceedin.gs before the Board and took the test before the Board to be that one Panel would not depart from a finding of another Panel in the absence off"exceptiona1 circumstances." a. The Employer did not ask this Panel to depart from the finding that Wallace and Jackson performed substantially the same duties and responsibilities as the "usage" employees in that case, and we were asked to find that the Grievers do not perform the same job as Messrs. Haines and Rogers. 9. It was further submitted that, in any event, the Divisional Court has expressed "concern" with respect to the "appropriateness" of the "exceptional circumstances" test. In Her Maiestv the Queen v. OPSEU (Duuuis), an unreported decision of that Court, dated May 8, 1990, the Court reiterated that it is the duty of the Board "to 1 98 address the issues before it and to make its own decision on those issues." (At pp.2-3) I 10. It was noted that in Wallace and Jackson the Board found that the Employer failed to adduce evidence to assist it with respect to the difference between vocational rehabilitation and social work, and that the case might have been decided differently had such evidence been adduced. (See pp.20 et sea.) We were asked to find that in the case before us there was ample evidence on this subject from three Employer witnesses: Dr. Wattie, Mr. Carter and Mr. Stein. Union Reolv to the Emolover Submissions With Resoect to the Auulicabilitv of the Wallace and Jackson Case In her reply, counsel for the Union submitted: 1. That while the Union conceded that Wallac e cannot be determinative of the "standards" issue, the "findings" made in that case were clearly applicable to the case before us. Reference was made to the Board's findings in Wallace and Jackson as to the duties of the grievers Wallace and Jackson and as to the duties of the "usage" witnesses called in that case which were set out as the Board's findings of fact. We were asked to rely on those findings to find that in the case before us the Grievers perform.the same 99 duties (duties (i) to (xv)) set out above, as the grievors and "usage" witnesses in Wallace and Jackson. ,I 2. We were~ asked to find that the decision of the.Divisional Court in Duouis is not a bar to the Union's argument succeeding on the basis of a comparison of the factual findings of this case and the facts in Wallace and Jackson. It was submitted that the Court's comments regarding the "exceptional circumstances" test are obiter. 1t was submitted that the Court was in agreement with the "manifest error policy." The Wallace and Jackson Case The following represents some of the facts found and the rulings made in the Wallace and Jackson case. 1. The grievors Wallace and Jackson were at all material times employed by the Ministry of Health in the position of Rehabilitation Counsellors and were classified as Rehabilitation Officer 2. They grieved that they had been improperly classified and requested reclassification to the position of Social Worker 2. 2. They relied exclusively on a usage argument. The three "usage" examples relied upon were all employees of COMSOC and were classified as SW2. The usage employees were: Mrs. E. Segal, who 100 occupied the position of Rehabilitation Counsellor, Mrs. B. Gander who occupied the positlon of Vocational Rehabilitation Counsellor I f and Mr. Robert Philips whose position title was Rehabilitation Officer. 3. The test applied was the "substantially the same" test and not the "virtually identical' test. (p.2) 4. Counsel for the Union, in Wallace and Jackson, acknowledged (at pp.2-3) that there was IIsome difficulty . . . presented by the fact that the examples furnished were with respect to employees of different ministries, working out of different offices with a different mix of individuals and problems to be faced." The Board was: "nevertheless, asked to find that the essential duties and responsibilities of Mrs. Gander,~Mrs. Segal and Mr. Philips were essentially the same as the Grievers in a functional sense." 5. The Board, in Wallace and Jackson (at pp.4-9) stated: There are a number of earlier cases where a test of virtual similarity had to be satisfied before the second part of the test could be met. The later decisions cited in this decision recognlze that it is not a task for task comparison that must be met but rather a test based on "distinctive and essential elements . . . being performed . . . . This is how I view "the same duties." We were also asked to find that although different words were used to describe the functions, duties and responsibilities of Mrs. Segal. nevertheless, in substance, the Grievors did the same thing. We were asked to accept Mrs. Gander's description of her duties and responsibilitiesand those oft the Grievers as being essentially the same. Mrs. Gander's evidence was said to be of more weight because of the fact that she had worked 101 in the position of the Grievers as well as in her own present position (as a Social Worker 2). We were asked to compare Exhibit 7, being the Position Specification of the Grievers with the Position Specification of Mrs. Gander and Mrs. Segal (Exhibits 9 and 101 and to find that they represented the same jobs. We were asked to find that the focus of all the jobs was vocational rehabilitation. The same argument was made in the case of the job performed by Mr. Philips (Exhibit 11). We were asked to find that there was, in fact, no real distinction between a Rehabilitation Officer 2 and a Sociai Worker 2 when the actual functions performed by the Grievers and the three comparison employees were examined. They were all said to fbcus on the vocational potential and needs of their client population. Mrs. Gander, Mrs. Segal and Mr. Philips were said to go through the -same exercise with their client population as did the Grievors. Their client population is made up of persons requiring vocational rehabilitation as a result of physical, emotional and mental disability. The only difference, it was stated, between their work and the work of the Grievor6 was based on such differences as existed because of the nature of the institution and of the .particular client population. In the case of the Grievors, the population suffered, primarily, from psychological and emotional disabilities including problems of mental retardation. However, it was stated that their client population includes, as well, persons suffering 'from physical problems. The population serviced by Mrs. Gander and Mrs. Segal suffers more from mental and physical problems, with a lesser number having emotional problems. However, in all cases, it was said, the clients have social problems. It was noted that the client population of Mrs. Segal and Mrs. Gander are not as disabled-as those within the client population of the Grievers and Mr. Philips. In the case of Mr.'Philips, his client population suffers from a number of disabilities, with the principal focus on mental problems (severe mental handicap) although other clien,ts suffer from physical and emotional problems. This population is more severely disabled than that of the Kingston Psychiatric facility, where the Grievers work, and the facilities where Mrs. Gander and Mrs. Segal work. We were asked to find that the mix and severity of the disabilities affecting the client population of the Grievers fell somewhere between the client populations of Mrs. Segal and Mrs. Gander and that of Mr. Philips. What was emphasised was that the exercise of carrying out the duties and responsibilities was, in all essential matters, the same for the Grievers and Mr. Philips, Mrs. Segal and Mrs. Gander. That is, they are said to have gone through a similar exercise in utilizing resources to carry out a client assessment. They are all said to be responsible for identifying educational assessment and training programs and to act similarly in assisting their clients in the vocational aspects of the program and In moving to jobs if they are able to do SOL. They are all said to be responsible for carrying out placement in programs, training, job placement, pre-vocation and life skills. They are also responsible for assessing a client's potential, .identifying suitable programs., access to work situations, monitoring clients, assisting clients to work through problems which arise in carrying out the job of vocational training and placement. All of them were said to focus on the individual client's program and were responsible for endeavouring to meet the client's vocational needs. We were asked to find that the Grievers utilized the many facilities available at the Kingston Psychiatric Hospital and, where such facilities were not available, they were required to seek out .existing facilities in the community. The Grievers were able to utilise funding available through Canada Manpower and other public funding agencies. The Grievors worked with a mix of in- and-outpatients, with in-patients going out into the community to take advantage of resources and programs. We were asked to find that there was no real difference between the nature of the work performed by the Grievers and the work performed by Mrs. Segal and Mrs. Gander, although the nature of then funding was not the same. Mrs. Segal and Mrs. Gander had funds available,to them to purchase services in the community. As was the case for Mrs. Segal and Mrs. Gander, the Grievers were said to be required to be aware of relevant legislation applicable to them, and all of them drew on similar sources for assistance in the community. Reference was made to the uniform resort to COMSOC and other agencies such as Canada Manpower. The relative similarity that we were asked to find was utilization of common resources to provide similar services for a client population. We were asked to find that such difference in funding as existed amounted to a distinction absent a meaningful' difference. In the case of Mr. Philips, who worked within an institutional setting, there was an acknowledgment of the different emphasis based on the different client population. However, we were asked to note that the functions being carried out by Mr. Philips, including 103 objectives and techniques, the manner of proceeding and the resources employed, were substantially the same for him and for the Grievors. In dealing with supervision, we were asked to find that there was no distinction between the Grievers and Mr. Philips, Mrs. Segal~ and Mrs. Gander. We were asked to note that the Grievers were subject to very little immediate supervision and that they worked virtually independently, with their cases being reviewed once a month. Although they obtained information during periodic team meetings with respect to individual clients in the institution, this was said to amount to an exchange of information between the members of the team. The Grievers were said not to obtain orders or direction but were merely in receipt of suggestions. While referrals were received by them from psychiatrists, it was sup to them to prepare the vocational rehabilitation assessment and~to carry out the assessment plan and the monitoring, with little direct intervention for in- patient clients. In the case of out-patient clients there was no team structure set up, but exchanges of information were effected in an informal fashion. We were asked to'find, from the evidence relating to Mrs. Segarl, Mrs. Gander and Mr. Philips, that the supervision structure applicable to them was very similar to ~that which applied to the Grievers. In the case of Mrs. Gander and Mrs. Segal, there was no team structure in place, however, they drew on other disciplines as needed and meetings might be set up to deal with problems affecting individual clients. Inter-disciplinary resources were drawn upon to effect the best vocational program for a client. Reference was also made to the fact that within his institution, Mr. Philips had both formal and informal exchanges of information with a number of people concerning his client population. In the case' of Mr. Philips, out-patient clients would use the facilities of the institution and he coordinated and structured programs to best suit the needs of the client. In the case of discussions concerning out-patients, he chaired the informal meetings which were held. 6. The Board in.Wallace and-Jackson also noted that Wrs. Gander, had filed a classification grievance when she was,classified as a R02 and, as a result, was reclassified as a.SW2 in 1981. When Mrs. Gander testified, she emphasized that she had, while classified as 104 an R02, performed the same duties and had the same responsibilities as the grievor-s and: i She concluded that there was no relevant difference between what she now does, what she did when she was a Rehabilitation Officer 2, and what the grievers now do. Emphasis was placed on the fact that she had performed the grievers' functions when classified as a Rehabilitation Officer 2 at the Kingston Psychiatric Facility. 7. Counsel for the union in Wallace and Jackson relied on the credentialism policy and "argued that in the light of the policy . . . there was no requirement that the grievor6 have formal academic qualifications in order to succeed in this grievance. It was further noted that Mr. Philips nor Mrs. Gander had professional social work training at the university level and that, accordingly, the grievors' lack of formal or educational qualifications represented no impediment to the a llowance of the grievance." (At pp.ll-12) 8. Counsel for the employer in Wallace and Jackson, in submitting that the grievors, in that case, did not perform substantially the same job as the three "usage" examples, took the position: . . . that the objectives, resources, techniques used and the manner of functioning in the case of all of the five persons discussed could apply~ to anyone in the rehabilitation field, such as physicians and other members of the clinical teams involved. The intention in all cases was to maximize the potential of a handicapped person. Mr. Brown argued that the most common purpose was .insufficient to assist the Grievers. It was submitted on behalf of the Employer that there were needs of the client population which went beyond the vocational and the degree to which a higher order 'of professional functioning was expected of Mrs.~ Gander, Mrs. Segal and Mr. Philips represented the principal distinguishing (. (. 105 feature in this case. Reference was made to the class standards. Reference was made to the preamble of Exhibit 6, being the Social Workers Series, which indicates that Social Workers are within the Scientific and Profes'sional category. We were asked to find that the Rehabilitation Officer Series is an Administrative Services category. 9. In acknowledging a certain amount of overlap between the Social Work class series and the Rehabilitation Officer class series, counsel for the Employer "asked [the Board1 to note the significant differences in the classifications as defined." (at p.14) 10. At p.14 of Wallace and Jackson, as in the case before us:. Emphasis was placed on the factthat Mrs. Segal and Mrs. Gander worked with clients who had a wide range of disabilities, primarily not of a psychiatric nature, and that they do not function within the confines of a psychiatric institution. The Grievors' primary responsibility was to a client population suffering from a variety of mental disabilities and the secondary problems affecting their client population remained secondary. With respect to Mr. Philips, it was observed that most of his clients suffer from mental retardation. 11. Reference was also made to the fact that two of the usage examples, Mrs. Gander and Mrs. Segal. were not part of a clinical team that assisted in the counselling function and had no psychiatrist involved as head of the team. The only conferences applicable to them were called on an ad hoc basis. This was contrasted with the hospital clinical team environment involving the grievor6 where the primary focus was the psychiatric well-being of the client. (at p.15) Mr. Philips was also said to operate without a clinical team. (ibid.) 106 12. Counsel for the Employer in'- also argued that the grievors, in that case, did not have, the same independence of action as the "usage" examples, although he acknowledged that they had a good deal of independence. The Board was asked to examine the framework in which they operated (the clinical team), which "indicated that they were part of a structure with a major concern with psychiatric care; the grievor6 being involved in the occasional rehabilitation component of a patient's care. It was suggested that there were a number of parts involved in this care which had to be integrated." (at p.15) 13. Counsel for the Employer in Wallace and Jackson argued that the grievor-s were not involved to the same extent as the usage examples in purchasing necessary outside services for clients. In the case of the grievors, such services were usually found within the medical clinical team and they did not determine when and if a service would be required outside the institution. The usage witnesses were said to have made independent decisions concerning the use of outside assistance that was beyond the powers of the grievors, where the decisions were made by the team. 14. Counsel for the employer in Wa e acknowledged that there were certain common objectives and techniques employed by the grievor6 and the usage examples,,but the Board was asked to find that the attainment of the objectives and the techniques employed required a different level of functioning, and in the case 197 of Mrs. Gander and Mrs. &gal "a much greater variety of problems presented themselves because of the different nature of the disabilities dealt with by them." They were said "to orchestrate a successful introduction of clients into gainful employment." At pp.16-17) The case of the grievers. was said to be different because: "This was not the realistic purposes of [their1 work and, in any event, their work was overseen by psychiatrists, although it was acknowledged that such intervention as might be forthcoming from psychiatrists was not very great." 15. At p.17 of e the Board stated: The major point made by [counsel for the Employer1 was that the distinction between the role of the Grievors and those with whom they were compared was in the manner that the Grievors exercised their responsibilities and duties, there being a real difference in that the Grievers were not as independent in their functioning nor as sophisticated in their functioning as Mrs. Gander, Mrs. Segal and Mr. Philips. 16. The summary of the Union position is set out at pp.17'18 of Hallace and JackSQD: Un,ion Counsel stated that the responsibilities of the medical members of the team, with whom the Grievors were associated, demonstrated a different focus and that in their functioning the Grievers manifested the same focus on objectives and the use of techniques as those with whom they were being compared. It was the position of Union Counsel that the Grievers represented a team and were involved in vocational rehabilitation and might be viewed in the same way as those with whom they were compared. The Grievers were stated to have brought the vocational rehabilitation component to the team. They were said to merely receive information from~the team which permitted them to develop a vocational program and that in this way they were no different from Mrs. Gander, Mrs. Segal and Mr. Philips. Resources were employed by all of them. The resources were in the nature of feed- back from specialists whose information assisted the Grievors, as it assisted the others, in developing a vocational program. The,Grievors were said to be no more or less interested in the psychiatric problems of'.their clients than were Mrs. Segal and Mrs. Gander. That is, their interest in psychiatric problems was only significant to the extent that it bore on the vocational program to be developed. Thus, it was stated, the duties and responsibilities of the Grievors, Mrs. Segal, Mrs. Gander and Mr. Philips were the same, in substance, only the sources of information were different. In all cases, resources were resorted to and. used. The Grievors, it was said, were no more subject to real direction than those with whom they were compared. Union Counsel emphasized that this case was not concerned with the class standards (best fit) but with a comparison of what the Grievers did when compared~ with what the Social Worker 2's did. Board also notes (at p.19):' There was said to be nothing significant in the fact that different expectations with respect to obtaining employment was had for each client population. This depended on the severity of the mix of problems affecting the client population. Although the Grievers' success would be less than that of Mrs. Segal and Mrs. ~Gander, Mr. Philips had an even smaller percentage of successful long term placements because of the profound mental disability affecting his client population. The Grievers were said to be, in this regard, "sandwiched" between Mrs. Segal and Mrs. Gander on the one side and Mr. Philips on the other. The Union denied that the Grievor-s were unable to decide the programs for their client population within the institution. We were asked to find that there were certain controls affecting Mrs. Segal, Mrs. Gander and Mr. Philips in the choice of outside specialists to assist them; Board in Wallace and Jackson concluded, at pp.20-22: After reviewing all of the evidence, I cannot find a realistic basis for finding a sufficiently significant difference between the real functions performed by the Grievers, Mrs. Gander, Mrs. Segal and Mr. Philips. There was no persuasive evidence concerning the higher professional social work standards required of Mrs. Gander, Mrs. Segal and Mr. Philips, as alleged by Counsel for the Employer.. As Mr. Brown emphasized,' social work 109 can be performed by a wide varie,ty of people with varying degrees of training. In some cases, ~a degree of professional sophistication is demanded which is, to some extent, a function of professional standing and education. This is recognized in the Employer credentialism policy, even though no special source may be required for attaining skills and knowledge. I would be prepared to find, in a proper case, that experience alone cannot be relied upon as a basis for finding the existence of certain professional skills; in this case professional social work skills. A para-medic or nurse clinician may be shown to perform some of the same functions as a person with a medical degree and, statutory requirements aside,' it could be easily demonstrated that they were not performing the same work for job classification purposes. Similarly, there may be a case for showing that a higher level of professional social Work training is required in order to qualify for and function up to the standard qf a particular social work position, even if direct observations would tend to show two positions to be essentially the same. For example, nurses in a psychiatric setting, may give psychotherapy, including group therapy. This does not, putting aside the question of formal credentials, make them into psychiatrists. In this case, the work performed by the Grievers, Mrs. Gander, Mrs. Segal and Mr. Philips was insufficiently differentiated on any level. The claims made on behalf of the Employer, that the Grievers had less decision .making control, had a different role, functioned differently and in a less professionally sophisticated manner, were insufficiently established to overcome the evidence of similarity which was adduced. I heard no evidence concerning the incorporation in their work, by Mrs. Gander, Mrs. Segal and Mr: Philips, of. professional social service and rehabilitation principles normally associated with a graduate of a recognised university social work course or that of a related discipline. Mrs. Segal holds an M.S.W. degree and there was no evidence to cause me to conclude that she employed her training at a level consistent with her academic attainments. Her evidence ~did not demonstrate that she was undervaluing the extent to which her job called upon her to utilise other than rudimentary social work skills. From her evidence, I would gather that there was no need to employ higher level social work skills associated with a graduate degree in social work, let alone an undergraduate degree. 110 I emphasise, that in another case, the evidence of necessary professional understanding of social work theory and practice might undermine the Union position. Such evidence did not figure in this case, except'as we were asked to find its existence in the evidence presented. Upon examining the evidence, I cannot find a basis for so finding. In the circumstances, the grievances succeed on the secondtest involving substantial similarity of duties and responsibilities and I need not consider the first test. On the evidence, I would find that the Grievers ,ought to be awarded the classification of Social Worker 2. A review of cases decided by the Board discloses that the jurisprudence has now reached a mature state, and certain common themes can be discerned that are of .assistance in deciding the grievances before us. 1. The basis for classification is reviewed in A m, 1336/91 (Finley), at pp. 18-19: Under the Public Service Act, [R.S.O., 1980 cap. s.41, the Civil Service Commission is assigned the duty of classifying positions and establishing salary ranges for positions in the classified service. It may also authorise deputy,ministers to classify positions which are designated by the Commission. Under this classification system, a group of duties is combined to create a position which is then given a position title and.a position code. The position title is usually specified 'in terms of the person who would hold the position, for example, Auditor - Desk, Financial Officer 2. A 'Position .Specification & Class Allocation' is drawn up specifying the number of places, the number and positions to which group leadership is provided, the class allocation and title, as well as the class code and occupational group number. Information is also provided 0* the title and position code of the immediate 111 supervisor of the position. The purpose of the position is spelled out as are then duties and related tasks, the skills and, knowledge required to perform the job at full working level and the reasons for classifying the position as it has been classified and certification that the classification is in accordance with the Civil Service Commission Classification Standards. It has become usual for the class allocation to be used to described the rank of an individual employee, whereas, strictly speaking, a position is classified and an individual is assigned to a specific classified position. Employees are normally compensated according to a salary scale which relates to the position which in turn relates to the class allocation. 2. In Adams et al., 1970/87 (Keller), the Board stated, at p.6: For a class standard argument to succeed, it must be demonstrated that the essence of the job does not fit within the assigned class standard: that the core duties are somehow sufficiently different so that another job is being performed. When it is argued that another class standard is more appropriate, it must be proven that the core .function of the job and the class standard are essentially and substantially the same. In the instant case, the class definitionfor MO2 describes, with a considerable degree of accuracy the principle core functions of the grievor. Although there may be some dispute relating to some of their minor, ancillary functions, there can be no argument that they do not do the work as described in the class standard. In EElrick et al. lo)85 etc. (Dissanayake), the Board stated, at p.9: . . . The Board has held that in order to succeed, a grievor must persuade the Board on a balance of probabilities, that his "significant job duties" (& Hilson, 535/84. Roberts) or "the core of the duties" c&e. Freeman, 393/81, Verity) are beyond the duties assigned to his present classification. In Marshall et al., 1797/89 etc. (Keller), the Board stated, at pp.8-9: The out jurisprudence of the Board is replete with statements .lining the test used to determine whether a class standard is appropriate or not. Essentially they state that the core of the definition of the classification must apply to a job. What that has been interpreted to mean is that the Board must satisfy itself that the functions which are an integral part of the class standard - what makes that class standard unique and distinguishes it from other class standards - a re performed by the gr~ievors. In the instant case it is clear that they are not. the core functions of the grievor's job bears no relationship to the legal surveyor class standard. In fact, to the extent that the O.L.S. held by the grievers precludes them from doing legal survey work, and 'given that the core function in the class standard requires the performance of legal surveying, it is difficult to see how the class standard applying to. a legal surveyor could also apply to the grievor=. In Barklev/Jones, 1520/87, 1521/87 (Kirkwood), the Board stated at pp.3-4: The Board in the Ennis Schuller [17/85 (Kirkwood)] case summarized the tests that are to be applied when determining whether the grievers are properly classified, when the Board stated at pages 3 and 4 of the decision: As stated in the decision of _(OPSEU (Roundina) and TheCrown G.S.B. 18/75 (D.M. Beatty), the onus is upon the union to prove that the employer is not conforming to the classification system which has been established or has been agreed to. Therefore the union must establish on a balance of probabilities that the grievor=' jobs do not conform to their job classification. In order for the grievers to obtain a higher classification, the Union must persuade the Board that significant job duties are beyond those assig.ned to the. present classification and constitute significant duties of the higher classification that the grievor6 seek. (n ) Hilson inistr of Education) G.S.B. 535/84O (Roberts). OPSEU (Beworth) and The Crown in Riaht of Ontario G.S.B. 26/80 (Roberts), wan) and The 3. The 113 Crown in Rig \L of Onta '0 G.S.B. 323/81 (R.L. Verity)). As found in many of the cases of the Grievance Settlement Board, and as referred to in OPSEU (M. Parker) and The Crown in Ri ht o -y of Environment) G.S.B. 107/83 (P.M. Draper), if the Board finds that the grievor6 are not properly classified, the board must accept the classification system as it is and interpret and apply the classification system. The Board may either place the grievor= into the appropriate category or if there is no appropriate category, order the employer to reclassify the grievor=. Therefore the issues are as follows: 1. What duties do the grievers perform; 2. Do the duties conform to the Maintenance Electrician's standard; 3. If they do not fit the class standard of the Maintenance Electrician, is there a better fit within another class standard, such that there are significant duties which the grievor6 perform which are assigned to the higher classification which the grievor6 seek; If there is not an appropriate class standard, the employer must be required to create a new rzlassification to meet their job functions, in accordance with the decision of the Divisional Court in w and The Crown f i i ht o Onta it and Social Services). Therefore, in order to determine whether the grievor6 are properly classified as Maintenance Electricians, the Board must compare the duties which they perform and compare them to the class standard. Board does not hold the Employer to a standard of perfection in classifying positions. In Ei.eaxa. 949/89 (Dissanayake), the Board stated at p.10: In all of the circumstances the Board finds that the grjevor's duties and responsibilities do not fit reasonablv within the MM 2 class standard and that therefore his position is improperly classified. 1 I-- !, 114 [Emphasis added]. This is stated in another way in wet 39/89 CSlone) at p.19: What the cases clearly require us to do is, first, look at the class standards in relation to the grievers' jobs. If the jobs as performed can fairly fit within the general language of the assigned standards, .then that part of the analysis is at an end. It would not matter that the grievers' jobs might also fit into another class standard. . . . The need for there to be a "substantial difference" .in the nature of the duties and tasks for a position to be reclassified is also set out in Thaleshvar, 1659/90 (Knopf), at p.5: . . . The following cases were cited as authorities from this Board for the proposition that reclassification ought not to be' ordered unless there is a ."substantial difference" in the nature of the duties and tasks: &r&s and Ministrv of Natu ra, GSB File 2417/87 (Dissanayake), November 19, 1990, Booth and Ministry of. Transuortation, GSB File 192/90, (W. Low) November 30, 1990, ROY and Ministrv of Natural Resources, Board File 946/89 (Knopf), March 19, 1990, Evans and Ministry of TranSDOrtatiOn, GSB File 1531/90 (Samuels), May 24, 1991 and Dumo d an 1, GSB File 1822/90 (Kaplan), July 22, 1991. The Board in Thaleshvar, pointed out an error that it had made in a previous case (Behrsin, 1363/90 (Knopf)) and stated, at pp.6- 7: As mentioned above, the same panel of the Board ruled in the Behrsin case that the language of the Class Standards with respect to Purchasing Officers should be interpreted contextually and that this leads to the conclusion that P.O. 2's are not expected to supervise subordinate Purchasing Officers. Further, in the Behrsin decision, we also indicated: . . . the Union can also achieve some success in the grievance if it can show that any of Mr. Behrsin's 115 duties and responsibilities can take him outside of or beyond the P.O. 2 classification. In light of those conclusions, it is not surprising that the ,Union has brought this grievance on behalf of Mr. Thaleshvar. However, the behrsin decision cannot be read outside of the context of other GSB jurisprudence. It is rare that a panei of the Board gets an opportunity to clarify a previous award and to better assist the parties in interpreting how the principles ought to be applied to a fact situation. Quite frankly, our earlier statement that the Union may be able to achieve .success if it can indicate that "any" of the grievor's duties and responsibilities take him outside of a particular classification must also be read in light of the Board's jurisprudence that indicates that a reclassification ought not to be ordered unless those duties amount to "a substantial difference betweeen [sic1 the duties performed and the duties referred to in the Class Standard." See Dumond, m at page 19 [1822/90 (Kaplan)]. In the Dumond case, referred to in Thaleshvar, the Board stated at p.17: For a classification case to succeed, a grievor must show that his or her job does not fit within the relevant class standard. We agree with the finding in Aird that "the class standard must necessarily contain some general language, but it must not be phrased in such generalities as to make the description meaningless" (at 4). We are also in agreement with the view expressed in Fenske 494/85 (Verity) that: Class standards are, of necessity, generally worded statements which are intended to constitute a general outline of duties and responsibilities. These standards are absolute in the sense that the Board has no jurisdiction to alter or amend them. The Board is obliged to treat the Class Standards in light of the current circumstances as though drafted with the Grievor's position in mind (at 13). This was also the finding in mder et al,, 803/88 etc. (Verity) at p.8: 116 Class standards are of necessity generally worded and must be taken as read, and interpreted as a whole. Although not meant to be a job description, the class standard must cover at least the significant elements of the job. The first question, then, is whether the grievor is properly classified in ,his existing classification. This was also stated in Jaooer et al., 696/89 (Knopf), at p.4, referring to Anderson 497/85 (Roberts), where it was said: . . . an employee may be properly classified even though he or she does not perform all or a majority of the duties described in a Class Standard. We accept that Class Standards must, by nature, be general in scope and there will be significant variations in the concentrations of the. duties of employees who are properly classified thereunder. 4. Questions shave arisen in determining, as a matter of fact, if there is a substantial difference between the duties being performed~ and the duties described in the class standard, whether ~this is a matter that can be decided by reference to percentages. In Annis et al., 1872/90 (Roberts), the Board stated, at pp.13-14: . . . counsel referred the Board to Re Tomassoni and Uinistr Y of Communitv and Social Services (1989), G.S.B. #807/86 (Verity). where the board issued a Berry order rather than reclassify the grievors into a claimed classification because there was at least a 10% difference between the jobs. The board said it agreed "that a 10% difference in job does not demonstrate substantial similarity." Ld. at p.18. By the same token, then, counsel submitted, it would be improper to retain the grievor8 in the Welfare Worker 2 class standard if at least 10% of the job of ES1 Counsellor fell outside it. In this case, it was submitted, significantly more than 10% fell outside the four corners of the class standard. 117 In Dumond (suora); the Board, in referring to the determination based on reference to percentages, stated at pp.19- 20: There is a long line of jurisprudence at this Board that for a reclassification order to be given the Board must be satisfied that there is a substantial difference between the duties performed and the duties referred to in the Class Standard. In the authorities cited by union counsel, the Board was apparently satisfied that there was a substantial difference between the duties being performed and the duties described in the Class Standard. That, of course, is a matter of fact to be determined in each case. It is not, in our view, a matter that can be determined by reference to percentages :(although they may be helpful). If 'such a method were exclusively followed, where would one draw the line? Would it be sufficient to say that if a grievor wasperforming duties not included in her Class Standard 10% of the time that constituted a substantial difference? What about if she was only performing duties snot included in her Class Standard 9% of the time? Would that fail to meet the test? What about if she was performing duties not included in her Class Standard only 5% of the time, but those duties involved significant responsib~ility well beyond that ever envisaged in the Class Standard? What about if the duties were of an infinitely more complex character than those in the standard? What if the duties required a significantly greater degree of skill and training than that required in the Class Standard. What if the duties were unrelated in any way to those described in the Class Standard? These questions illustrate the difficulties inherent in attempting to resolve these questions with percerrtages. The cases, at least those cited by union counsel to the Board, depend to a great extent on their facts Andy appear to have been decided on that basis. There is no reason, in our view, to interfere with the longstanding jurisprudence of this Board that a substantial difference between the job being performed and the job described in the Class Standard is a pre- requisite to a Berry Order. Whether or not there is a "substantial difference" and what constitutes a "substantial difference" will be a matter for the Board to determine on the facts of each case. 5. In Leworthv, 26/80 (Roberts), the Board stated at p.7: ,- i. i 118 At the hearing, there appeared to be little dispute between the parties as to the principles of law that apply to a case such as the one at hand. As to,the Class Standard for the Clerk Supply Series, both parties'appear to agree under that settled law, a position ought'to be accorded the classification in which the duties to be performed in that position meet the compensable factors differentiating that classification from the one immediately below it. The parties, however, differed markedly in their application of the Class Standard for Clerk 3 Supply to the facts of the case. Further, at the bottom of that page, the Board stated: . . . in order to fit within this paragraph 12nd paragraph of the class standard1 the position of the grievor must involve all- of the compensable features required by it and that the one compensable feature that is not accorded the position of the grievor is that the grievor be "in sole charge", with responsibility for "security of the stockroom . . . . 6. In French/Kioroff/Flaherty, 279/88 etc. (Wilson), at p.21, the Board stated: I decline to apply best fit to the Clerk 5 because in my view that approach is modified by the Be.rxy rule. I find that it is a non-fit so far as the Clerk 4 is concerned but deviates too much from the Clerk 5 ,to justify ordering it to be specifically classified as such. Furthermore, I wish to avoid further distorting a classification system which has long been out of alignment. 7. From its earliest decisions, the~Board has stated that it must accept the classification system as it is found (Re Parker. 197/83 (Draper) This "can lead to some strange conclusions," and that, notwithstanding, the "board is also a prisoner of this system." 3.e Armstrong, 1190/87 (Gorsky) at p.37. The significance of this fact was noted in w,~ 595A/90, where reference was made, with approval, to Be Elrick et al, lo/S5 (Dissanayake), at p.13: 119 It is important to note that the role of the Board is not to examine the higher classification claimed, to see if the grievers' positions equally fit that higher classification. Before reaching that step, the':Board must first satisfy itself that the position does not reasonably fit the existing classification. In Lurm. at pp.13-15, the Board noted the argument of union counsel that ~+&xY conferred: . . . jurisdiction on the Board to place a grievor in a higher classification, even though he properly fits within hiss current classification. She disagrees with the Board's findings~in the past, that it must accept the employer's classification system as it finds it. She points to two decisions of the Board, Re (supra) and Re Barklev and Jones (suoral and m and Jones (a) as instances where the Board went on to consider whether the grievor's position fit a higher classification, even though it had concluded that the position reasonably fits within the existing classification. She urges the Board to follow that approach. In the two cases cited by counsel,,the Board did indeed find that the grievors' position fit within his existing classification, but then proceeded to consider whether the position also fit the claimed higher classification. In each case the Board concluded that the position did not fit the higher classification. There is no discussion in either case about the Board's authority to award a higher classification in the circumstances. We do not consider either decision as authority for the Board's jurisdiction to award a higher classification, when the grievor's position is currently properly classified. Rather, we see the inquiry by the Board in those cases as obiter dicta, simply intended to reinf~orce that the grievor would not have been entitled to the higher classificationclaimed in any event. If those decisions represent a departure from the Board's established practice, we prefer the latter practice as being the one correct in law. In Re 24/85 (Brent) at p. 5 the Board stated: "It is therefore the opinion of the Board that in dealing with a classification decision unfettered by Article 5.1.2 of the collective agreement it must first determine whether the grievor has proven on balance that he is improperly classified. this~ c 120 determination can be made in accordance with the principles established in the jurisprudence of this Board as it existed before the Divisional Court decision in BerrV since we do not consider: that that decisions dealt with how one determines whether an employee is improperly classified. If the employee has not satisfied this Board that he is improperly classified, then the matter is at an end. If the employee has satisfied the Board that he is improperly classified, then the Board must fashion an appropriate remedy, which may or may not be to award the grievor the class~ification which he sought in his grievance." In Re Braund (m) at p. 19 the Board stated as follows after a review of the Board's jurisprudence: What the cases clearly require us to do is, first, look at the class standards in relation to the grievors' jobs. If the jobs as performed camn fairly fit within the general language 'of the assigned standards, then that part of the analysis is at an end. It would not matter that the grievers' jobs might also fit into another class standard. Only if the assigned classifications in this case were seen to be wrong, would we have to look at the Industrial Officer series, to decide if the appropriate remedy were 'to assign the grievers to classifications.within that series. We are not at that point. We agree. In the standards approach the Board may find that a position is improperly classified because the grievor's core duties do not fit the class definition as written. In the usage approach the Board may find that while the position fits the class definition as written, the classifications established by the employer by practice, makes it improper. In both cases the Board must find that the grievor is improperly classified.- before considering a,remedy. In our view, this state of the Board's jurisdiction is not affected by the Court decision in Ele.rxy. . . . 8. 1n the case before us, as in many other classification cases, ,issues arise as to when the addition of new duties take a job out of its original classification. In Byrd, 1349/87 (Slone); at p.8. ( : 121 the following passage was quoted with approval from &y, 946/89 (Knopf) at p.8: i . . . the addition of new duties may take a job out of 'its original classification, but only where those duties are of such a kind or occur in a degree as to amount to a different job altogether. See for example Baldwin and LYD!3, GSB 539/84 (Palmer) and Fenske, GSB 494/85 (Verity). As these and other cases show, the propriety of the classification is a factual issue to be decided on the merits of each case.... The onus is on the grievor to show that he is actually performing a job, the essence or core duties of which do not fit within the class standard to which it has been assigned by the employer. ;.. Where a grievor% 'duties and responsibilities change, there will be a point where the fit in his assigned classification is no longer a "comfortable fit." See Fenske, 494/85 at pp.14-15. I" addition, as was also noted in Fenske (ibid.), the Board must determine whether the change in the duties of a grievor affect his/her "degree of responsibility, independence and judqement" beyond those called for in his/her assigned classification. Also see Beags et al, 453/88 etc. (Wilson), in this regard. The Board has been sensitive to the fact that the task of classifying the Civil Service is a,difficult one. There are thousands of different positions across the Province and it is both unworkable and unnecessary to expect that each individual job attract a specific classification. Accordingly, general classifications are necessary, and each job does not have to have an "exact" fit with the classification assigned to it. The Board has adopted, the "core functions test" set out in then Keluskv 122 t1098/86 (Wilson)], KM [85/89 (Verity)] and Jaqqer [696/89 (Knopfll cases. . . . . . 9. The cases are replete with examples where the personal characteristics of a grievor indicate that he/she possesses skills and qualifications that exceed those required by the duties and responsibilities of the class standard to which he/she has been assigned. Nevertheless, the test for the Board is based on the requirements of the position and not the characteristics of the grievor. In Hoffman-Fitz et al., 293/91, 2787/91 (Knopfl, the 'Board stated, at pp.8-9: The responsibility of this Board is to determine whether the grievor6 are properly classified. ,As the GSB has articulated many times, in deciding ~classification cases, the Class Standards are to be read in a broad, general and flexible way so as not to impose upon the employer the impossible task of specifying every element of each job. The provincial civil service is ~simply enormous and Class Standards are designed to give broad categories rather than specific job descriptions for every type of .job. In order for the Union to succeed in a classification grievance, the onus is upon it to satisfy the Board that the fundamental or core duties of the grievers are not adequately reflected in their present classification. Thus, the task of a Board of Arbitration is to compare the duties and responsibilities of the qrievors with the Class Standard to see if the Class Standard recognizes the expectations the Employer has of the qrievors. In a case such as this, given the high degree of ~professionalism and independence of the grievers, this Board has to be careful that we do not analyie the job in terms of the individuals who hold the job. As was stated early in the Board's history in the Gerrard case, GSB File 521/81 (Joliffe) at page 26:. 1n reaching this conclusion we are not taking into account the grievor's lqng experience or high 123 qualifications for the position the1 now ho1d.s. It is well understood thatwhat must be classified is the position itself, the duties and responsibilities required, and not the merits of the incumbent. Thus, in making the following analysis and coming to the following conclusions, we have done so'qn the basis of the duties and the expectations of the positions, not on the basis of the vase individual expertise, competence and experience that the grievors possess [sic]. In quoting the Ho case, with approval, the Board, in wet 88/90 etc. (Gorsky), noted that the evidence may disclose that a -grievor might' be performing functions not actually assigned to him/her "as part of his regular duties and responsibilities" because "there was no expectation that he shouid perform it . ..*~ (at p.44). It is a question of fact, in each case, whether a grievor has had certain duties and responsibilities assigned to him/her or whether ~they have been assumed because they add a certain fillip to the job. There was evidence before us that a person could perform vocational rehabilitation counselling at a rudimentary level and that there were community college diploma courses and university programs in that discipline to the Ph.D. level. The evidence disclosed that many of the Grievors had a number of university degrees, .while some of their supervisors merely had grade 13. They had a lively intellectual interest in their work and many of them e~ndeavoured to bring to theirwork a higher l~evel of functioning based on their individual qualities. We are .satisfied from the evidence that the Grievers' supervisors were pleased to enable them to introduce a higher order of i sophistication into their job functioning. Each case must be 124 decided on its own facts, and there may be cases where employees, have leve than 1 been led to believe that they were expected to perform at a 2 requiring greater skills, qualifications and responsibility is provided for in their position specifications. Although the philosophical goal of the institutions where the Grievers work has undergone a significant change whereby the emphasis of the programs conducted are no longer narrowly custodial and diversional but are genuinely structured so as to aim for the integration of the client .population' into the community, the evidence was clear that only a minuscule number of the Grievor?' client population could, expect to be placed in regular gainful employment. It is a tribute to the work of the Grievor? that the program has striven to give the clients the very best chance of succeeding in other than diversionary activities or in sheltered employment. We have only the highest regard for .the effort, skill, dedication and integrity' manifested by the Grievors. Their sincerity was evident, and their desire to offer more assistance to their clients is commendable. However, as we have stated earlier, we are as much prisoners of the classification system as they are. In this regard see Zakrewski, 90/88 (Samuels), at p.14:. Generally, this Board has made it clear that it is the job which is classified, not the incumbent. An incumbent may be over-qualified for the job, but this does not make any difference to the classification. But in this case 125 the general rule does not work. This is a job with a very flexible top end. The environmental officer is called on to deal with contamination. -I ALSO see &ZQ, 1021/89 (Roberts), at p.14. The above discussion of the law is concerned with general statements applicable to a wide range of fact situations. What follows is a discussion of some of the legal principles applicable to the special facts of the grievances before us. Throughout the hearing, the Board invited counsel for the parties to provide it with assistance so that the members of the panel could understand what was meant by various terms of art found in the socia.1 worker class series. For example, the term "professional social work services" found in the preamble: "Provision of professional social work services in provincial programs of social development, adjustment, prevention and rehabilitation." Another term of art found in the preamble is "social work methods" in the sentence: "Employees use one or more social work methods to assess, treat or prevent the underlying causes of social dysfunctioning, both personal and environmental." The term "professional social work services" is also found in the class standard for Social Worker 2. Another term that we wished to have explained, also found in the Social Worker 2 class standard, is "formulate psychosocial diagnoses of the personal environmental causes of social dysfunctioning.'" The term "social work methods" is also found in the Social Worker 2 class standard. The term 126 "methods of social work" is also found in the "knowledge and skills required" portion of the Social Worker 2 class standard. ,. It is evident that the Social Worker 2 class standard involves not merely social work services. but professional social work services. Given the placement of the onus, it was for the Union to satisfy us, on a balance of probabilities, that the Grievers provided professional social work services. In Hoffman-Fitz (a) the grievers were Investigative Social Workers in the Office of the Official Guardian, classified as Social Worker 2's, and claimed that the unique nature of their duties ad responsibilities were such that the SW~ .classification was inappropriate to their positions, and sought a m order. In 'describing their duties and responsibilities, the Board emphasiz.ed those duties and responsibilities that represented "social work skills". Reference was made to certain “Social Work Agents," who worked on a per diem basis for the Official Guardian, whose work was supervised, to some extent, by the grievers. The Social Work Agents were said to also be "professional social workers." (p.3) At p.5 of the Hoffman-Fit2 case,.the Board noted, at p-5: As Ms. Heisey [the grievers' supervisor] herself said, "When I hire a Master's degree, I am hiring judgment as well." Thus, Ms. Heisey explained that she relies on the professionalism and the expertise of the Investigative Social Workers tthe grievorsl to know when and in what circumstances they need to consult her about their own reports or about fundamental, legal or po'liCy problems with a Social Work Agent's report. 127 At p.10 of the Hoffman-Fits case, the Board focussed on the fact that: i The Social Worker 2 Class Standard indicates that the Class covers 'the position of qualified Social Workers who provide professional social work services to clients. . . . In dealing with what is a social work technique, the Board, at the same page, noted its finding that a particular technique (Alternative Dispute Resolution) was "taught in schools of social work as social work techniques." At p.11, of Hoffman-Fitz, the Board stated: The Social Worker 2 Class Standard envisions. that people wquld "supervise and review the work of Social Work Assistants, Child Care Workers, Residential Counsellors and.other staff in the area." Filed before the Board were the Class Standards for the Social Work Assistants, Child Care Workers and Residential Counsellors. All these positions envision undergraduate degrees or certifica,te programs. The Social Work Assistant is something quite distinct from the professional Social Worker or Agent that these grievers are called upon to supervise. Thus, although we are bound by the Employer's credentialism policy and recognise that a person can fulfil the role of a professional Social Worker without having graduated from a school of social ~work with either .a Bachelor or Masters of Social Work degree; one acquires certain knowledge and skills based on the academic program given in a school of social work. These must be identified in order to be able to establish that the Grievers, none of whom is a graduate of a schoo 1 of social work, has acquired the skills and 128 knowledge of a professional social worker notwithstanding the absence of formal credentials. 8 Professional social workers can function in that capacity in a large number of different settings. Although persons in a large number of different positions may be carrying out duties and responsibilities that appear to be the same as those carried out by professional social workers, does that make them professional social workers? For example, within psychiatric facilities, such as those where the Grievers are employed, many different kinds of ~professiona~ls perform group therapy:, psychiatrists, registered nurses, social workers, occupational therapists, registered psychiatric nursing assistants, psychologists. To a casual observer,~.and in fact to a patient, group therapy is group therapy. To an expert, however, the techniques employed would owe a great deal to the training and knowledge of each discipline. While each group therapist w.ould be conducting group therapy, the nature of that therapy would be greatly affected by the background of education and knowledge particular, to, the discipline of the therapist. The Board can ignore credentials, in the sense that it is required to do so because of the Employer's credentialism policy. It cannot, however, ignore the base of knowledge 'and training that stands behind a person's credentials. There would have 'to be clear and cogent evidence to establish that a grievor, absent the usual 129 credentials associated~ with a classification, had acquired that level of trainings and knowledge, in some other fashion. Registered > nurses, paramedics, and medical doctors may perform similar medical procedures. However, when they do so, they would be expect'ed to manifest, in the absence of other evidence, that degree of skill, knowledge and training associated with their separate disciplines. The same situation would apply to many other professional relationships. Thus, many para-legals perform legal work oft a kind that is also performed by lawyers. In the absence of other evidence, it would not be proper to state that a legal para- professional .is a professional lawyer. The examples given take into consideration that in some of the situations described, it is not legal to. practice the profession without a professional designation. This, however, does not change the validity of the example. A case that furnishes some guidance in dealing with the issues created by the grievances before us is that of Anderson et al. 605/80 (Stewart). I,n that'case, there were four grievances,~ and by agreement of the parties, a representative grievance was heard. The grievers claimed that they were improperly classified as Social Workers 1. At the time the grievances were filed, the grievers were case workers in the Home for Special Care/ Community After- Care Program employed at the London Psychiatric Hospital and were classified as Field Worker 1, but, after the grievances were filed they were reclassified as Social Worker 1. The grievers claimed 130 that they were still improperly classified and claimed that they should be reclassified as Social Worker 2, Nurse 3 General or ,I Rehabilitation Counsellor 2. The alternative claim made 'by the grievers was that if none of the classifications sought by them were found to be appropriate, the Board should order that the matter be remitted to the employer for the establishment of an appropriate classification in accordance with w. The employer took the position that the grievers were properly classified as Social Worker 1. The Homes for Special Care program deals with clients who are mainly chronic schizophrenics, whose illness is under control but is still debilitating. The clients of this program are able to live and function in the community with supervision and support. The representative grievor was a Registered ~Nursing Assistant and a Psychiatric Nursing Assistant who also had a diploma in community mental health, which she received after completing a two- year course at a community college. She also took university courses in psychology and sociology as well as a number of one- or two-day seminars dealing with various aspects of mental health. She commenced her employment with the London Psych~iatric Hospital in 1968 as a Registered Nursing Assistant and was employed for ten years on an adolescent unit in the hospital where she carried out counselling and case work with adolescents and their families. ! I 131 This work was carried out under the supervision of the nursing department. The representative grievor was employed in the HSC program commencing in 1980. Much as the representative Grievor in the case before us: She testified [at pp.2-31 that her work is not directly supervised as, by and large, she functions independently in carrying out her responsibilities. Weekly meetings of the HSC unit are held, at which time problems are discussed .in a collegial manner. Case load assignments are based on the location of the client. The case load ,is varied and Ms. Anderson testified that assignments are not selected to provide for development of skills. The HSC programme is part of the social work department. However, there are no representatives of the social work department present at the weekly meetings of the HSC case workers and no direct involvement or supervision of the HSC .programme comes from the social work department. Ms. Anderson stated that her involvement with the social work department is limited. The case workers and social workers attend monthly departmental ,meetings. Mr. Sussman, director of the social work department, does not provide any day to day supervision but Ms. Anderson stated that if there was a matter such as an unusual purchase or a change in funding ,she would refer the matter to her supervisor who, in turn, would refer it to Mr; Sussman. At pages 8-9 of the Anderson case, the Board noted' the evidence of the representative grievor: . . * while the orientation of the HSC programme was originally to provide housing, rehabilitation is now being provided to some extent by the case workers. Presently, approximately three clients per month are able to move to a programme that requires less support or to independent living., Ms. Anderson stated that approximately 25% of her clients have potential for employment and that she is involved in vocational rehabilitation on their behalf but that the needs of her other clients relate more to basic living skills. 132 In dealing with the way in which the grievor was classified in the Anderson case, the Board noted, at pp.9-10: Bryan Neale, the regional personnel administrator with the Ministry who is responsible for the preparation of job specifications and the evaluation of those specifications against the class standards testified that he was involved in the decision to classify the HSC case worker position as Social Worker 1. He stated that he felt that the existing classification of Field Worker 1 was inappropriate because of the extent to which the duties and responsibilities of the position had expanded. He stated thathe examined the Social Worker series as well as the Rehabilitation Officer series and that neither of these series fit the position "hand in glove". He stated that he felt the Rehabilitation Officer series was inappropriate because it appeared to be designed to encompass positions which primarily involve vocational rehabilitation. He was also concerned about the appropriateness of the Social Work classification because of the reference to a social work degree which is contained in that series. Ultimately, the grievers in Anderson were classified as Social Worker 1 by the employer because certain persons having similar positions were so classified within the Ministry at the St. Thomas Psychiatric Hospital, Hamilton Psychiatric Hospital and Kingston Psychiatric Hospital (at pp.lO-11). That there are difficulties in establishing where to classify persons performing duties and responsibilities that are performed across a spectrum of classifications is made clear from the following statement found at p.11 of the Anderson case: The Union alleged and the employer agreed, without requiring the Union to adduce evidence, that there were certain differences with respect to the programmes that the case workers were involved in at these other institutions. In particular, with respect to the St. Thomas programme, it was agreed that clients with rehabilitative potential are not placed in this 133 programme. At Kingston Psychiatric Hospital 75% of the clients are mentally retarded rather than mentally ill. At Hamilton Psychiatric Hospital there is a personother than the case workers who is responsible for recrea'tional programming for that programme's clients. In Whitby the HSC case worker position is classified as Nurse 3 General. In North Bay and Thunder Bay the persons who perform the HSC case worker duties are classified as Social Worker 2. In concluding that the grievor-s, as case workers in the HSC program, did not fall within the Social Worker 1 class standard, the Board noted, at p.12: "As the preamble to the Social Worker series indicates, it.is intended to apply to professional social workers. The Social Worker 1 classification is the entry level position which is to provide training and experience under close supervision for newly graduated social workers." Referring to the Social Worker 2 class standard, the Board noted, at2 p.13: This class standard is intended to apply to "qualified social workers" who provide "professional social work services" and "formulate psychosocial diagnoses of the personal and environmental causes of social dysfunctioning". Clearly, it does not encompass the work performed by the case workers in the HSC programme. While the classification ,of case workers at other institutions as Social Worker 1 makes Mr. Neale's decision to classify the grievors as Social .Worker 1 understandable, this evidence does not establish that the grievor-s are properly classified. In addition, given that the duties of the grievers are not identical to the duties of the employees at these institutions and that case workers in other institutions are classified as Nurse 3 General and Social Worker 2, the fact that some case workers involved in a Homes for Special Care programme at other institutions are classified as Social Worker 1 is of little assistance in resolving the issue at hand. 134 In considering the Rehabilitation Officer 2 classification, the Board stated,~ at p.14: ".,. This classification is orJented exclusively toward vocational rehabilitation services 'which comprise only one aspect of the duties performed by the grievor-s. . . , It met 176/89 (Knopf ) is another case indicating how a number of different classifications will give rise to similar duties and responsibilities in circumstances that are significant ii in the cases before us. In the latter case, the union claimed that Psychiatric Nursing Assistants (PNA'S) at two provincial psychiatric facilities were improperly classified. The grievor-s, who were recognised as health care professionals, were trained at the Community College level and accredited by the College of Nurses of Ontario, as Registered Nursing Assistants. After taking additional specialty training at psychiatric facilities they qualified as PNA's. The union alleged that because of the level of responsibility and tasks expected of the PNA's, they were improperly .classified'and should be classified as Nurse 1 General. Then latter classification covered, for the most part, graduate nurses who had not achieved registration with the College of, Nurses. The case proceeded by way of representative grievors from the London Psychiatric. Hospital and the St. Thomas Psychiatric 135. Hospital. Among the duties testified to by one of the grievers was her participation (at pp.Z-3): , . . . in several therapeutic programs for the patients including family counselling, drug and alcohol abuse, life style programs, medication awareness, discharge .planning, group therapy, adolescent groups, activity groups' (leisure time) and abuse groups (rape and incest) and assertiveness training. The PNA's may get involved leading such groups on the adolescent 'unit. The PNA's are not required to lead any groups but where a therapeutic group is being held in an area of expertise in which the PNA has an interest or specific training, s/he may if s/he.wishes may be assigned to lead such group. MS. Sullivan also testified regarding the PNA's responsibility to provide reality orientation to patients to help them gain an awareness of time, place or person and to dispel delusional, behaviour. They also must perform grief counselling when a chaplain or social worker cannot be found to help a distressed patient. Further, at p.8 of the SB cake, the Board noted: It was submitted that the PNA's are now required to exercise professional judgment and expertise, are actively responsible for the treatment and care of patients and that these are not contemplated by the original Standards. This was said to be evidenced by the new concepts of Primary Nursing and the evolution of Nursing Care Plans and the PNA's responsibility on the multi-disciplinary teams. The multi-disciplinary team is referred to at p.3 of the decision: In addition, the PNA's participate in a multi- disciplinary team and treatment plan. This team consists of a psychiatrist, occupational therapist, social workers, psychologists, recreational therapists, nurses and PNA's. The team meets in conference four to six weeks after the admission of the patient to focus on the "overall picture or plan of care for a particular patient." The PNA has a great deal of inputto give the team because of his/her direct contact with the patient on a continuous or regular basis. 136 At pp.13-14 of the decision, the Board concluded: Finally, the PNA's simply do not have the educafional requirements of the Nurse I Generals. Given the different level of medical responsibility of the N&se I General with respect to administering of medication, sterile dressings, oxygen, intravenous, care of unconscious patients and ordering intrusive ,procedures, the Employer has satisfied the Board that the higher education requirements are necessary to fulfil the added medical responsibilities of the nursing series. We recognise that the specialised psychological component of the PNA's training equips them well for their tasks and that they develop an invaluable expertise and specialised knowledge from their continuing professional development. But we accept the Employer's evidence that the further depth achieved in the accredited nursing course of at least two years' duration is a valid job requirement for the Nurse I General position. While, in the case before us, it may not be necessary for a Person to have graduated from a professional school of social worker to carry out'the duties Andy responsibilities required of a Social Worker 2. where this isnot the case a grievor claiming the SW2 classif'ication must demonstrate that he/she has, .in some manner, acquired the "further depth" that would be achieved upon graduation from an accredited professional school of social work where in order to obtain a bachelor's degree, a student must satisfactorily complete four years of academic and placement training, and in order to obtain a master’s degree the applicant must complete two post-graduate years in a recognised professional school of social work. A graduate of a four year Bachelor of Social Work program may attain the master’s degree after one year of study. (.: ! 137 Using the example of group therapy, merely because a registered nurse, for example, may lead group therapy sessions, and, on other occasions, the sessions may be led by a psychiatrist, psychologist (from the Bachelor's to the Ph.D. level), a social worker either BSW or MSW, or an occupational therapist, does not' mean that they are carrying out the function in exactly the same way. The background of theoretical knowledge and specialized practical experience of each of the disciplines will affect the way in which they carry out the common responsibility. It is the special attributes of a training program for a specialiied discipline that will usually determine wh,ether a person is functioning at a professional level within that discipline. So, a professional social workerusing professional social work skills is carrying out his or her functions in a way that can be differentiated from the way in which another professional, such as a registered nurse, will carry out the same function. A lay- person, without formal professional qualifications, carrying out functions that can be carried out .by any number of different professionals may be,emulating all, some or none of them. It would take significant cogent evidence to satisfy us that a non- professional ,had, in some fashion, acquired the skills and knowledge to carry out a particular function associated with a particular profession up to the level expected of such a professional. 138 The grievances were, in part, motivated by certain changes which were introduced into the BPH (and other like institutions) which have been referred to in other cases including v &, 1265/88 (Wattersl. Some of the history recited in the latter case is relevant to the grievances before US. In Charbonneau et al,. grievances were filed by 12 employees at the BPH,~all of whom were Recreation Therapists classified as Instructor 2's. Recreation and Crafts (I.2 R.C.). The parties could not agree on a representative grievor, and one case was heard with the other claims being deferred until after the release of the Charbonneau award. The grievor whose grievance was heard in charbonneav was-a Mr. Newcombe. At p.1 of Charbonneau, some of the history at the BPH is set out : B.P.H. is a four hundred and ninety (490) bed facility serving Eastern Ontario. It is~ comprised of twelve (12) wards, eight (8) of which are focused on patient rehabilitation. The others are designed to treat persons whose stay in the hospital will be for the longer term. Care and treatment is provided by a cross section of disciplines including psychiatrists, psychologists, social workers, nurses, pastoral care workers, and recreation therapists. There was a similarity between the position of the Grievers in the case before us and that of the grievor in Charbonneau, where the Board stated at p.3: The grievor testified extensively about his duties and responsibilities subsequent to his placement on Ward 5A in, late 1985. He also described his work in the Recreation Department prior to such placement. Generally, it was his position that his job had changed . over 139 the years in a qualitative sense. More particularly, the grievor asserted that this change occurred as a consequence of a modification to the hospital's mandate. Both parties agreed that as of late 1985, the B.P.B. committed itself to the objective of community re-integration. The grievor stated that this change 'of focus had a significant affect on his work after 1985. In applying the tests applicable to class standards cases, the Board stated at pp.3-4: The Board elects to initially describe ~the grievor's duties as they developed in the period 1985 to 1988. It is these duties which must be assessed in order to determine whether the job falls within the scope of the class standards. We will then detail the changes which the grievor experienced over his entire period in the Recreation Department. At the outset, we wish to make clear that the mere fact of change does not in itself justify a reclassification. It is incumbent on the party relying on a change oft duties to show that they have qualitatively affected the position such that it is no longer caught by the language of the class standards. La.stly, we will summarize the, evidence led by the Employer. Simply put, it was the thrust of such evidence that while the job of .Recreation Therapist might have changed, it continued. to be properly classified at the 1.2, R.C. level. In the WU case, the grievor testified that the emphasis in his work changed in response to the Hospital's commitment to community reintegration, so that he spent about 80 per cent of his time setting up individual treatment plans far. patients with only 20 per cent of his time being devoted to patient participation in pre-set activities (p.4). The grievor contrasted the situation existing prior to the change in focus in 1985. He described his delivery of recreational services prior to 1985 where patients were assisted to engage in 140 pre-set activities of a diversionary nature (p.5). The Board found that the program at that time "had a custodial element" (p.>J. As in the case of the Grievors before us, the grievor in Charbonneau testified that he was an integral part of the ward treatment team whose composition and activities were described as follows (at pp.5-9): The above-described situation was contrasted with that existing prior to 2985. It was the grievor's evidence that he then delivered recreational services out of the West Activity Centre. There were several similar centres. located throughout the hospital. The grievor, and the other Recreation Therapists working in the centre, did not have offices at that Idcation. The grievor stated that groups of between twentg-five (25) and forty (40) patients, from a number ,of wards across the hospital, would be escorted to the centre to engage in pre-set activities such as pool, shuffleboard, table games and crafts for periods of up to three (3) hours. This group of patients would include those persons who had been specifically referred to the grievor by the psychiatrist for the ward to which the grievor had been "linked". The grievor described the activities occurring in the activity centre as having a "diversional objective". At the conclusion of same, the patients would be escorted back to their respective wards. It is apparent to us that the program had a custodial element as the centre was considered to be a "secure area". Additionally, a "sharp count" was undertaken before the patients departed for their wards to minimize, the possibility of subsequent injury to residents or staff. The grievor testified that he was an integral part of the ward treatment team while in Community Placement. That team included the professionals previously referred to. While it was 'conceded that the psychiatrist had the ultimate responsibility for treatment, it was the grievor's assessment that the team functioned on the consensus model. He testified that all of the team members' opinions would be solicited and respected. From his perspective, all of the care and treatment pr~oviders had an equal amount of input into the development of the treatment plan for a particular patient. (;l.. : (: 141 The ward treatment team would conference weekly to review its existing caseload and to familiarise itself with new patients. disciplines It was the grievor's evidence that any pf the in attendance, including. the Recreational Therapist, could elect to work with an individual patient. More specifically, he stated that he would decide if recreation therapy could be employed to satisfy the~particular needs exhibited by a patient .on the ward. This decision to intervene did not require the prior approval of, or a referral from, the psychiatrist. While a revised referral form, (exhibit 12) was in place as of October, 1985, it was the grievor's recollection that its use decreased with the passage of time. Indeed, he asserted that patients were not generally referred to him bY the psychiatrist. Rather, he would initiate involvement during the ward treatment conference. In addition to isolating the needs of particular patients on the ward, the team would meet regularly to monitor their progress and to discuss the general direction of the rehabilitation program in view of the current mix of patients. It also would deliberate vis a vis patient discharge. In summary, the grievor stated that he, as a Recreation Therapist, operated as a peer or professional equal in terms of the work performed by the team. The grievor distinguished the above-described role from his earlier involvement in the interdisciplinary treatment conferences. It was the thrust of his evidence that the physician-psychiatrist would generate a referral to the Recreation Therapist through the completion of a referral form (exhibits 8, 12). This form would indicate, albeit not in great detail, the purpose of the referral; limitations affecting recreational activities; and long and short-term objectives relating to potential discharge. The grievor stated th,at, generally, direction was given therein as to how he should work with the patient. He ~would then accept the referral in most instances and would proceed'to carry out the plans set out by the psychiatrist. He viewed this role as that of a subordinate. The grievor testified that, after his placement in Ward 5A, he was extensively involved with the development-and implementation of the recreation component of individual treatment plans.. The initial .stage of this process required that he engage in an interview with the patient to complete a ten (10) page Leisure Assessment Form (exhibit 13). This document., which was first implemented in the spring of 1988, had four (4) components, these being: (i) Client Interview & Interest Survey; (ii) Assessment-Observatidn; (iii) Creation of An Individual Recreation Plan; and (iv) Monitoring and Evaluation. The ( ::: 142 first stage of the process served to isolate the patient's interests in areas such as sports activities, part-time activities, spectator activities, arts, c,rafts, hobbies, clubs or group activities, and trips and travel. The aforementioned interview would permit the grievor to survey the patient's interests in these areas and would allow for the development of rapport necessary to the ultimate success of the treatment plan. The Recreation Therapist would next place the patient in one or more of these activities in order to observe and assess their social interaction, emotional expression, cognitive performance and abilities, and physical 'performance. Following this assessment, the grievor would then formulate a series of treatment. goals. The resulting treatment plan would be canvassed with the patient to ensure that they were willing and able to become 'fully ,involved with same. The ward treatment team would also be apprised-of all of the developments throughout this process. .Indeed, to be effective the recreation plan had to be consistent with the overall treatment plandevised by the team. The patients progress in treatment was continually monitored and charted. This could result in.~ some modification to the recreation plan. The 'grievor expressed the opinion that the primary function of the Recreation Therapist was to assess the .patient and to thereafter prepare and implement the recreation component of. the treatment plan. He stressed that such plan was individualized in that it would address the peculiar needs of a given patient on the ward, The grievor suggested that this type of responsibility was materially different, in both a quantitative and qualitative way, from that engaged in at the activity centres when he worked with larger groups. He conceded that the types of activities available to patients were similar during both periods. He emphasized, however, that after 1985 the program selected was tailored to the individual needs of the patient. It was the grievor's assessment that his work in Ward 5A and in the Elmgrove Unit was significantly more therapeutic in comparison to the tasks performed within the activity centres. As noted above, he characterised the latter work as diversionary in nature. The Board, at p. 11, also referred to the evidence of the grievor's supervisor, from 1985 to .the date of the grievance, whose evidence supported that of the grievor: 143 Indeed, he expressed the opinion that the Recreation Therapist was responsible for the entire recreation plan and for all decision making in respect of same. From his perspective, the grievor was expected to show gieater initiative once he became ward based. The Board also referred to the evidence of a head nurse at BPH who supported the evidence of the grievor and who also stated: While Ms. Millar agreed that the psychiatrist was ultimately responsible for medication and ~establishing ~the "privilege level", she suggested that~ every discipline had a significant'responsibility as part of the team. She stated that the "exclusive territories of any one discipline tend to get blurred." Ms. Millar stated that award 5A was unique in 1985 in that it was the first ward to change the thrust of, its approach to rehabilitation. The Board .also referred to the evidence of Professor Adrienne Gilbert, a Lecturer in the Department of Recreation and Leisure Studies at the University' of Waterloo, who gave evidence on behalf of the union and who was accepted as.an expert by the employer who could testify on the subject of therapeutic recreation. In examining the class standards, Professor Gilbert concluded, at p.13, that they did not deal with the person engaged in "therapeutic recreation" but related to a person primarily involved in "diversional activities." The significant conclusion of the board in Charbonneau is set out at p.29 of the decision: After fully considering the evidence and argument presented by both parties, the Board has concluded that the 1.2 R.C. class standards no longer encompass certain significant aspects of the Recreation Therapist position. This has resulted from the fact that the standards, last revised in 1969, have not kept pace with the developments 144 which have occurred at B.P.H. since 1985. More particularly, they fail to reflect the grievor's core duties as a Recreation Therapist subsequent to the hospital's change in mandate. For reasons ex@i-essed below, we find that the institution's commitment to community reintegration led. to several related changes in the grievor's job, all. of which were of a qualitative nature. The Board (at p.30) regarded the class standard as providing "for activities of a purely diversional nature." Although the Board (ibid.) did not find the class standards,to be "entirely diversional in substance," and would "cover positions which would be somewhat involved in rehabilitation therapy," (ibid.) it found (ibid 1 that: A The Board 'is unable to find, however, that the class standards adequately describe the role of the Recreation Therapist as it developed subsequent to 1985. From that date on, the grievor's fundamental purpose while onward 5A was the provision of therapy and rehabilitative services such that the patient could be successfully returned to the community. In our judgment, the current standards ,fail to sufficiently describe the extent of therapy offered by the Recreation Therapist. Indeed, we are satisfied that all of the core activities of the grievor's job can be linked to a therapeutic objective. The Board also reached a similar conclusion (at p.31) with respect "to the formulation and execution of individual treatment plans." This was viewed as part of the "overriding objective . . . to assist in the formulation and execution of an effective and comprehensive treatment plan." The Board concluded (ibid.1 that "on a review of the class standards Iit was1 not satisfied that they contemplate a therapeutic role of that magnitude." 1. \ ~, _. 4nnis et al . , ,.~- ( :. 145 1872/90 (Roberts) is another. case involving a grievance claiming improper classification within a classifiyation that contains references that might be found in a social? work category. The'grievors in that case were classified as Field Worker 2's and occupied positions "of a hybrid nature." They were a group of four provincial employees working in the Employment Support Initiatives Program (ESI). The thirteen other counsellors in the ES1 program were municipal employees. 1n the circumstances, the grievers had been seconded to the municipality and performed the same duties and responsibilities as those employees working for the Municipality. The placement of the grievers was originally as Welfare Worker 2'9, as this was the closest classification "salary- wise, to the ‘salaries being paid to the municipally employed counsellors."~ (p.2 ) The grievances salary levels for arose because of the widening gap between the the two groups of employees, while the counsellors still did exactly the same work. The purpose of the ES1 program was to encourage sole Support parents who were on welfare to improve their "employability" (p.3). "Its major component was counselling and advocacy to prepare clients for a future of self-sufficiency" (p.3). The counselling function of an ES1 counsellor was two-fold:' (1) vocational and employment counselling; and (2) supportive 146 counselling. The latter form of counselling "involved counselling regardiny anything in the client's personal situation acting as a i barrier to accomplishing her employment goal -- health, prdb'lems with,her spouse, problems with her children, poor housing, lack of self-confidence, cultural problems, racial problems, and literacy problems" (p.4). Vocational employment counselling: "involved assisting the client to make a realistic assessment of her needs at that particular time. It involved assessing her interests, abilities, values, and motivation to begin the process" (p.4). It is significant that in the &nn.& case the Board felt that it could not ignore "express references to a particular type of work" found in the grievers' class standard (at p.16). The Board was also affected ,(at p.161 by the fact that: '@By specifying' in the opening sentence of the class definition that it dealt with those who determined eligibility of applicants under welfare allowance programs, the drafters 'zeroed in' on a very specific area. We know of no principle of construction that would dllOW us to expand that area beyond those confines." .Another case that demonstrates the range of classifications involving different training and skills that might be involved with patients in psychiatric settings is Norton, 2181/87 (Stewart), where, in considering the Scientific and Professional Services 147 category, the Board noted that the Category included: "... positions involving the psychological diagnosis, assessment :,.. and rehabilitation of patients in psychiatric . . . and rehabilitation settings . . . .(( This was done in the context of a grievance involving a psychologist classified as Psychologist 1 who held a Ph.D. in psychology. In B, 39/89 ,(Slone) the Board, at p.16, referred to l&n&~, 43/77 (Adams), at p.5, where the Board, in referring to the usage test stated: . . . ,the application or purported applications of those standards ~to other positions involving identical or nearly identical work to that which the grievor performs. This latter consideration is relevant because the actual classifLcation practices of the employer may substantially modify the documented standards relied upon and because the treatment accorded other employees is very often the underlying reason for grievances of this kind. Further, at pp.16-17 of Braund, the board stated: More recent cases have not altered this test in any. respect material to this grievance. In u, 891/.85, Vice-Chairperson Samuels summarized the law with respect to the usage approach as follows, at p.8 of the award: "Thus, it is suggested that, if the Employer can show that the employee with whom the grievor is comparing himself is in fact wrongly classified, then it is not sufficient for the grievor to show that his tasks are the same as this other higher classified employee. And this suggestion is reiterated in Wrisht 248/81... But this is the only exception suggested to the general rulethat it is 148 sufficient to compare the grievor's job with the job done by one other higher rated employee.... In McLean 499/82, the Board said that the claim for reclassification would succeed if 'the Gri'evors were performing the same duties as those of other employees within the higher classification sought' (at p.11). While it might be said that this suggests that the comparison must be made with more than one employee, the authority relied on for this statement is Roundina. Lvnch. Wheeler, Montaaue and McCourt. And we have seen that these authorities say it is sufficient to make the comparison with One other employee, subject perhaps to the possibility that the employee to whom the grievor is compared is wrongly classified." In dealing with the degree of similarity that must be found to allow a usage argument, the Board in Robinson, 1817/91 (Kirkwood) stated at p.13: . . . ,the test has been modified such that the Board presently accepts the "substantially similar" test as set out in Beals and Cain t30/79 (Draper)]. Although the grievor-s in .Bors [283/91, 13971811 met a higher standard in that the work between the two comparators was essentially the same, the Board ,points out the underlining philosophy of the usage argument to apply the concept of fairness and equal~ity of treatment, both in status and in wages, of people performing essentially the same work. The Board adopts the reasoning in 'the Beals and Cain case and quotes: It may be assumed that among the objectives of the employer's classification system are the achievement of uniformity in policy and consistency in practice throughout the public service, and equitable treatment of individual employees. It follows that it is an abuse of the system and unfair to employees where the positions of employees who are performing substantially similar work are placed' in different classifications. By intervening where that condition is found to exist the Board, rather than frustrating the intent of undermining the operation of .the classification system, is preserving the legitimacy and credibility of the system. 149 Beals and Cain has been applied time and time again, . a,. . Where the work between the two grievers and employee being compared is the same, they ought .to be classified the same. There ~may also be situationslwhere there are dissimilar elements, but the core functions and responsibilities are similar. Inherent in the concept of "substantially the same" is that the essential elements of the job must be substantially similar. We ,must then consider whether Mr. Robinson's job is substantially similar to Mr. Schrader's. Questions have arisen in usage causes as to the number of employees there must be performing substantially the same work in a higher classification for the argument to succeed. In Carvalho, 1484/84 (Roberts), the Board stated at pp.16-17: Turning to the class usage argument, this brought into question application of the recent decision of the Divisiorral Court in Re Lowmpn andt ; ans for ..Iudgzent ications, Unpublished Reasons (November 15, 19841. Prior to this decision, .it was the position of the Grievance Settlement Board that in order to succeed on class usage, it was necessary for the Union to show that in practice, the employer had varied.the written Class Standard in such a way as to encompass the work of the grievor. The Board took the position that there "must be a consistent practice of varying the Class Standard", Re Lou &E (1984), G.S.B. #13/82 ,(Saltman). Indeed, in line with this requirement, the Board i'n Lowman, saxa, decided against the grievers on the ground that the "practice" requirement was note satisfied by showing that only one,employee in a higher classification performed the same work. Upon judicial review, the Divisional Court quashed the decision of the Board in Cowman, stating, in pertinent part: Having found that there was an employee performing substantially the same duties as the grievers and that such employee had been deliberately classified by the respondent in a higher classification, the Board acted . . . without jurisdiction in failing to find that the grievor would be properly classified in the higher classification. 150 The higher classified employee and the four grievers are the only persons in the public service performing the function of remote sensory supervision. In the circumstances we are b~f the opinion that it does not assist the respondent to argue that the senior employee may have been improperly classified. . . . (Divisional Court Decision, m, at p. 1.1 At pp.18-19 of the Carvalho case, the Board stated: Reading the decision of the Divisional Court ,in Re Lowman as a whole, we are led to conclude that the Divisional Court did not intend to reject the general rule of this Board that in order to succeed on a class usage argument the Union must show the existence of a consistent practice of- varying the Class Standard. Absent special circumstances, it does not satisfy this "practice" requirement to show that only one employee in a higher classification performed the same work as the grievor. The Lowman case, sJg.E&, was an example of special circumstances which brought the case outside the ambit of the .yeneral rule. As the Divisional Court noted in its decision, it would have been impossible for the grievors to.show that.more than one other employee who performed essentially the same work was classified at the claimed higher level. In the entire Civil Service, there were only five persons performing similar work-- the four grievers and the higher classified employee with whom they sought to compare themselves. It seems to us that the Divisional Court recognized that to apply the "practice" requirement of. the Board in these circumstances would be tantamount to denying the grievers their right to grieve. In the present case, there were not any special circumstances to render inapplicable the general "practice" requirement. In the &X&J& case the Board found that (at pp.19-20): The only higher classified job which was shown to be substantially similar to that of the grievor was that at Whitby. But, as has been indicated, in the absence of special circumstances the existence of one substantially similar job in a higher classification does not show that in practice, the Ministry varied the written Class Standard so as to encompass the work of the grievor. As 151 a result, the class usage argument must be resolved in favour of the Ministry. In Bahl et al., 891/85 (Samuels), there were eight grievors, all classified as Clerk 4 general, who claimed that they ought to be classified as Clerk 5 general because the Senior Clerk in their office was so classified and the grievers stated that they did essentially the same work as the Senior Clerk. The Board found, at p.4, that the union had established that the grievers performed "the same or essentially similar work as [was.donel by the Senior Clerk in their office [who was1 classified as a clerk 5 general." The employer, in the .&&LL case, argued, at p.4, that it was not enough to show that one .person performing essentially th,e same work had been assigned to a higher classification and it was submitted that the union must show that there are a number of employees who are in the higher classification who are doing the same work as the grievors. After reviewing the jurisprudence of the Board on the point, the panel of the Board, in m, concluded, at p.5, "it is clear that the comparison need be made with only one other employee." The Board, at pp.5-8, quoted Extensively from pages 11 and 12 of Bealsn, 30/79: i , i 152 It may be assumed that among the .objectives of the employer's classification system are the achievement of uniformity in policy and consistency in practice throughout the public service, and equitable treatment of individual employees. It follows that it is an abuse of the system and unfair to employees where the positions of employees who are performing substantially similar work are placed in different classifications. By intervening where that condition is found to exist the Board, rather than frustrating the intent or undermining the operation of the classification system, is preserving the legitimacy and the credibility of that system. . . . the employer must accept to be held to the consequences of departures, in particular cases, from settled policy or practice. . . . . . . The purpose [of the usage test1 is to establish either that the employer is conforming to its classification standards or that the employer has, in effect, modified those standards. . . . A recent award by another panel of this Board elaborated on this second line of enquiry on McCour t e, te 198/78. If another employee doing work identical to the grievor is classified at a higher grade, it may indicate that the employer's actual classification practices differ from the written classification standards. It should be noted, however, that the concern is with the proper application of the employer's classification system. Therefore, it may not be conclusive for a grievor to show that m employee in a higher classification performs the same tasks, for it may be that such an employee has been improperly classified. In dealing with applications under Section 17(2)(b) .of the C-p1 e eg A.&, S.O. 1972 c. 67. or grievance regarding classification under the collective agreement, the Board is not directly concerned with discrimination between employees in the application of the classification system, unless the differential treatment demonstrates a change in the classification svstem from the written 'standards. The Board's concern is with the question of whether the grievor's job has been improperly classified, when that job is measured against absolute standards. Often, the description of jobs of employees in the higher classification will only serve to illustrate. the application to particular cases of what are necessarily generally worded standards. [L’ ., (Emphasis in the original). (i: 153 The Board in u concluded, at p.8, that: i . . . if the Employer can show that the employee with.whom the grievor is comparing himself is in fact wrongly classified, then it is not sufficient for the grievor to show that his tasks are the same as,this other higher classified employee. And this suggestion is reiterated in Wriqht, 248/81, at pages 5 (at the top of the page) and 6 (about 2/3rd the way down the page). But this is the only exception suggested to the general rule that it is sufficient to compare the grievor's job with'the job done by one other higher rated employee. And this exception does not apply in our case. The Employer did not suggest that Ms. Moorer is wrongly classified as a Clerk 5 General. At page 9 of B&l. the Board stated: In Re Attorney-General for Ontario and Ontarlo Public, Service EmDlOVeeS Union e t al. (19831, 44 OR (2dl32, the Ontario Divisional Court upheld an award of the Grievance Settlement Board, which had granted reclassifications upon proof by the grievor that he was doing the same job as another employee who was higher classified. The Employer had argued that the latter employee was wrongly classified as a result of an earlier award by the Grievance Settlement Board. The Court decided that the Employer should not be permitted to reopen the earlier case by means of a challenge to the reclassification of the new grievor. Mr. Justice Osler said (at page 36): "The board has developed as the 'law of the contract' the view that employees in the same ministry doing identical work should be treated identically in the matter oft classification". Caution was suggested by Mr. Justice Steele so that we do not adopt a policy which means that one error will result in the automatic reclassification of many employees to an incorrect classification (at page 37). We agree that there is need for such an exception to the automatic reclassification of an employee. But in our case, wee reiterate that the Employer did not argue that Ms. Moore was wrongly classified. Indeed, the Employer's position is that she is correctly classified, but the grievers are doing different work. 154 The Board in Bahl indicated that: "Perhaps the waters became somewhat muddied in Lowman 13/82." The Board in E&&l,.. after analysing Lowman, stated at pp.lO-11: Was the Board now saying that tke old jurisprudence was overturned, and it was no longer the rule that an employee claiming reclassification would succeed if he showed he was doing virtually the same job as an employee who was higher rated? If this was what the Board said, and we are not sure that this is what was meant by the panel which decided Lowman, then it is clear that the Ontario Divisional Court would have none of it. In its unreported hand-written decision of April 22, 1985, the Court quashed the decision of the Board. In our opinion the Board erred in failing to apply the second test in 7 Ontario et al. (1982), 40 OR (2dy e14; (Brecht's case). Having found that there was an empl,oyee performing substantially the same duties as the grievers and that such employee had been deliberately classified by' the respondent in a higher classification, the Board acted u,nreasonably and without jurisdiction in failing to find that the grievors would be properly classified in the higher classification. It couldn't be clearer. An employee must be reclassified if it is found that he is' performing the same. job as another employee who is higher classified. In Vanderhevdeq, 2238/91 (Gorsky), the Board stated at pp.ll- 12: We are not sure that the conclusion arrived at by the .Board in u was as clear as it appeared to the members of the panel. In the unreported hand-written decision of April 22, 1985 .where the Court quashed the Uwman decision, the Court went on to state: The higher classified employee and the four grievors are the only persons in the public service performing the function of remote sensory supervision. In the circumstances we are of the opinion that it does not assist the respondent to argue that the senior employee may have been improperly classified. I 155 The last quoted paragraph appears to limit the broad interpretation of the first paragraph of the Court‘s decision. , 13: The panels of the Board in Carvalho and l&&l found different general rules of the Board in applying the usage test. The panel in Carvalho, at p. 18, found that the general rule was that, "in order to succeed on a class .usage argument the Union must show the existence of a consistent practice of varying the Class Standard. Absent special circumstances, it does not.satisfy this 'practice' requirement to show that only one employee in a higher classification performed the s&me work as the grievor. n At page 12 of the l&z&l decision, in finding the decision in Carvalho to be "manifestly incorrect", the panel concluded: It is clear from the review of the jurisprudence we have conducted here, and from the decision of the Ontario Divisional Court in the Lowman case, that there is no requirement that the Union go beyond showing that one employee in a higher classification performs the same work as the grievor. This is enough tom succeed in the claim for reclassification, unless perhaps~ it can be shown that the comparison employee is wrongly classified. And we have already said that this exception does not apply in our case. ,The Board, in m, went on to deal with the fact that, to that time there was apparently no case decided by the Board subsequent to &&l that squarely addresses the differences between the rules enunciated by the different panels of the Board in l&&J and Carvalho. The Board stated, at pp.13 -17: At page 11 of the McCulloch decision, the Board quoted from page 12 of B.&l: . . . It is clear from the review of the jurisprudence we have conducted here, and from the In .the Vanderhevden case, the Board further stated at pp.12- 156 decision.of the Ontario Divisional Court in the Lowman case, that there is no requirement that the union go beyond showing that one employee in a higher classification performs the same work &.s the grievor. This is enough to succeed in the claim for reclassification, unless perhaps it can be shown that the comparison employee is wrongfully classified. And as we have already said that this exception does not apply in our case. The Board, in McCulloch, noted that the Board i.n w found "that the exception did not apply because the employer made no argument that the comparison employee had been wrongfully classified." The Board in &C&&,&I, at pp.ll-12, then referred to m, 35/78, at p.4: The evidence does establish that the employer does, in fact, have one probation officer 2 in its employ who has not passed the set of examinations that were specified as of December 1964 to constitute the requirement to progress from probation officer 1, and who was being paid at Stage 5 of the probation officer 2 category. The present director of Probation and Parole Services ,testified that this has been an arbitrary decision made by a predecessor director, and that it was not a decision that the incumbent director would have made. He stated categorically that it had been wrong and contrary to known and stated policies of the Ministry. There existed no other cases of that nature. The Board in McCullogh, after considering the above quotation from Creet, stated, at p.12: I That decision indicates that the board has recognized that "wrongfully classified" does not refer solely to "slip-ups" as union counsel contended but also to an arbitrary decision by a manager. However, in our case the decision by the predecessor Ministry to reclassify the grievers as Correctional Officers was NOT arbitrary - but a deliberate thought-out decision made by the Assistant Deputy Minister himself in light of a Grievance Board Decision - not at all comparable to a director disregarding the rules of his own Ministry as in the Greet case. It is evident in the case before us that the decision to hire Dr. Bates as a Psychologist 1 and to pay him at the Psychologist 1 beginning rate (Tab "F" Appendix 1) was not an error nor a "slip-up" butwas an "arbitrary i;:. ,. i;. 157 decision by a manager." This was not a "deliberate thought-out decision made" at a higher Ministry level so as to indicate a change in the M,inistry's view of the requirements for the Psychologist 1 position.,; The decision in the case before us was "comparable \to a director disregarding the rules of his own Ministry as in the &e& case." 'Whatever the differences between the Bahl and Carvalho cases, success on a usage argument must be limited to those cases where it is clear that the Ministry has, in practice, altered the standards whereby employees are 'classified. We are not faced with such a case. In Re Dalrvmple 79/77, at pp.5-7, the Board stated: The grievor's principal argument before the Board lies not with the assertion that her job comes within the words of the higher class standard which she seeks but rather because her duties are the same as those of employees who do have the higher classification'sought. Previous decisions of this Board (Re; Be Rounding. 18/75; &z Wheeler. 166/78) support this as an alternative approach but it must be remembered that evidence of others in a higher classification doing substantially the same work as the grievor is only important when it is seen to reflect the actual practice of the employer. The actual classification practices of the employer may not truly be evidenced in the documents describing the classification system and if that is the case the grievor is, of course, entitled to be measured against the actual practices as opposed to any mythical practices which have since been abandoned (see Re.ontaaue. 110/78 and Re Wriaht. 248/81). It is not enough for the grievor to demonstrate that others are classified at a higher level and performing,the identical duties. As noted in Re Vukoie. 13/75; "However and to refer again to .our earlier Roundinq award in determining whether Mr. Vukoje should properly be, classified as a Clerk 3, this Board may consider not only whether she is performing the duties assigned to 'that position but as well whether she is performing functions which are .virtually identical to those assigned to those employees who both the emplover and the emnlovee agree e as Clerk 3's." ar ro (emphasis added in Dalrvmole) 158 Within the grievor's Department there are two employees, Lorenz and Donofrio, who are classed at the Clerk, Grade 5 level. It seems apparent that Lorenz and Donofrio were classified at thatelevel at a point in time when the actual classification system used by the employer was modified by some managers who believed in the elevating of employees as a reward for good performance. It is obvious that such a subjective approach over any period of time could nullify any classification system as the objective criteria of job duties is abandoned. This would lead to great inequalities throughout the bargaining unit as classification would .be dependent on individual assessments without any overall concern for uniformity. When the committee, including the outside consultants, reviewed the 3200 employees within the bargaining unit in its entirety we see that within their anomalies list are Lorenz and Donofrio who they would regard as better fitting the level of Clerk, Grade 3. The employer according to the evidence has adopted a policy that it will not reclassify people down and the while they recognise both Lorenz and Donofrio as being classified at too high a level they prefer to deal with this problem through attrition. This may appear as unfair to the grievor who admittedly performs the identical duties, and according'to the employer performs them very well, but to reclassify the grievor to Clerk, Grade 5 would be to exacerbate the lack of fairness between employees within this Department and other employees within the bargaining unit who are performing the same duties and who are not similarly classified. The main purposes of a job classification system, to promote uniformity and equality, would be frustrated if fairness to one individual necessitated the abandonment of the system. The tail would then wag the dog. Although the facts of the Dalrvmole case are different from the ones in the case before us, the Board, in that case, accepted that a usage argument had to support a conclusion that it reflected "the actual practice of the employer." If we accepted the Union's argument in the case before us we would undermine the main purpose of a job clas.sification, which is to promote "uniformity and equality" because to do so here, would frustrate that purpose as "fairness to one individual [would necessitate1 the abandonment of the system. The tail would then wag the dog." 159 In R 5 - n ubli Employees Union et al., above referred to, the reliance on a single case by the Board, which was upheld by the Divisional Court, was based on the application',of a policy that applied a varied form of issue estoppel; In that case, Steele J., in agreeing with the decision of Osler J., indicated his concern, at pp.36-7: In the present case the board adopted a policy which was open to it to say that once it has admitted that the work done by Ithe grievor1 was the same as [another employee who had succeeded in a classification grievance1 it would not. hear evidence to show that [the latter employee1 classification was in error. In so doing, it may in fact be adopting as a policy that one error can mean that numerous, if not hundreds, of other employees, doing identical work, will be reclassified automatically to an incorrect classification. . . . On the facts of the case before us, we do not find that the Employer has introduced such a practice as would indicate that it has departed from the requirements of the class standard for appointment to the 'position of Psychologist 1. As was pointed out in Mcculloch, "wrongly classified" can include cases where "an arbitrary decision" was made by a manager. The particular facts of the case will disclose whether the rules of a ministry have been changed by "a deliberate thought-out decision" or by an individual at a lower. level within the ministry, “disregarding the rules of his own Ministry as in the w case". What the court meant when the Lowman decision was quashed on judicial review was dealt with inTavlor et al., 478/85 (Brent). There, as was observed in He e, 48/88 (Dissanayake), at p.19: The Board held that the Court does not state that an employer can never successfully argue error when it held that the employer in that case could not argue error in the circumstances of that particular case. f::: !I ; 160 The Board in e H then went on to quote extensively from Tavlor, commenting on its view of~the law following the court i decision in w: Following the Lowman decision, it is our view that the Employer is precluded from pleading error or anomaly where there is a deliberate decision to classify substantially similar jobs differently. :It would appear that the overriding consideration, in view of that decision, is that the classification system be applied uniformly and consistently so that positions which are alike in all relevant respects are classified alike. The Court did not consider, a situation where the Employer recognised an error and then did something to restore consistency~ and uniformity to its classification system by applying~the class standard as written. It is our view that for a classification system to work properly and to ensure that the same work attracts the same pay there must be a mechanism for correcting the errors which will.inevitably arise in the application of the system. No classification system can hope to achieve even. a semblance of equity and fairness if errors must be frozen for evermore. If the Employer recognizes an error and then does nothing to correct it, it would appear that since Lowman it can no longer refuse to acknowledge that the Ilerror" has in effect become a relevant standard of comparison. Where the Employer recognises that a mistake has been made and acts to correct it, then surely it has restored consistency and uniformity to the system and can once again rely on the class standard as written as being the applicable standard against which to measure the job which is the subject of the classification grievance. In our view, it is irrelevant~ that the error was not corrected by the date the grievance was filed, and in this case the fact that the Employer was engaged in correcting the error at the date of the grievance and subsequentIy did correct it is sufficient to show that it was applying the class standard as written and did not intend to vary it through application. It would be strange result, indeed, if the'effect of this decision were to force the Employer to reclassify a.job which is classified correctly according to the class standards simply because it was substantially the same job asp one which had once been improperly classified higher than the grieved job but which was now properly classified in the same classification as the grieved job. If we were to do this we would be forcing the Employer to perpetuate a mistake it had already corrected and leave 161 it vulnerable to claims for reclassification from every employee occupying jobs classified as Operator 2 Microfilm. Such a result would not benefit anyone interested in encouraging a reasonable, fait and equitable application of a"Y system of% job classification. At p.21 of H me, the Board stated: As held by the Board in ReTavlor, the fact that the employer had corrected the improper classifications shows that it was applying the' class standard as written and did,not intend to vary it through application. .In the circumstances, to allow the grievor to now rely on a wrong classification is to force the employer to perpetuate an anomaly which has already been corrected. As the Board in Re points out such a result does not benefit anyone interested in encouraging a reasonable, fair and equitable application of any system of job classification. Reference ~was also made to A-., 1970/87 (Keller), where an argument was made on behalf of the grievers (at p.8-9): .*. that so long as they are able to show at least one person in the higher classification performing the same work as the grievers then regardless of the reason, the grievor must be reclassified. .1n particular, they rely on the decision of the Divisional Court in Re: Attorney General for Ontario and Ontarao l?ublFc Ser vice w Union et al, 440 O.R. (2d) 21. That judgment, we are told, stands for the proposition that even if a mistake is made in reclassifying someone to a higher position, or if that action is an anomaly, that position may be used for comparison purposes. The Board was also referred to the decision of A.J. Jolly 1162/88 (Fraser) as supportive of that proposition. In.the w case, the Board'found that the single example relied upon by the union was one where the usage example employee had been (at p.9) "appointed to the higher level on a personal incumbent ~only basis. His 'classification' changed, not that of the position. ,.." 162 In Bohrs et al., 1283/91, 1397/91 (Barrett), the grievers were performing essentially that same work as the usage employees, while 2 operating under different class standards, both of which accurately reflected their duties. The grievers earned 74c per hour less than the usage group. At p.6 of m, the Board followed Beals and && and referred to the proposition stated at p.13 of the latter cause: "that a grievor's position is improperly classified if it is not placed in the highest classification in the system hierarchy to which his work, measured against the work of employees -whose positions are in related classifications, entitles him." In Bent/Mahler, 2091/91 (Waisglass),~the Board stated, at p.8: We accept the holistic approach, but it is our view that in order to succeed the onus is on then Union to prove that the grievor's job, the job as a whole, is substantially similar to the class usage job in all of its distinctive and essential elements or components' which comprise the core duties. We agree with Vice-Chair Gorsky: "... it is not a task for task comparison that must be met but rather a test based on distinctive and essential elements being performed..." [in Wallace and Jackson {cited above1 at p.41 Thus, we must find in the evidence that all of the essential elements and components that are present in the comparator positions [for the class usage claim1 must also be present in the position of the grievor, and that the latter must not be deficient in resvect to anv one of the distinctive and essential elements or comwonents of the comparator position. (Emphasis in original) Atpp.12-13 of Bent/Mahler, the Board notes that there may be an apparent overlap of duties and responsibilities but it is necessary to look at those duties and responsibilities to see whether those undertaken by the. usage examples "are broader in 163 scope and at a higher level than those carried out by the ., grievors." :, In Bellemare et al., 2273/90 (Knopfl, in dealing with the usage argument, the Board noted, at pp.ll-12: However, on the unusual facts as revealed in this case, and given the clear evidence that the classification of the [usage examplel.was clearly an anomaly within the Province and in no way affected the way the Employer was applying the classification system with regard to Operators, this is simply not a case where it is appropriate for the Union to be able to sustain a usage argument. This is especially so because the Union was advised even before this grievance was filed that the Employer has realised its error and wished to rectify the situation. Ins-, 27138/90, 2713C/90 (Stewart), a number of the grievors had brought prior grievances which were pursued on the basis of a "standards" argument and no “usage” argument was advanced. These grievances were dismissed. Subsequent to the hearings with respect to those grievances, the Board~heard the grievances of other persons similarly classified to the grievors where the union did advance a "usage" argument, comparing the work performed by those grievers to the work of employees in the Industrial Officer classification, where the union was successful. It was this reclassification that the union now wished to rely on in support of its "usage" argument. The decision was a preliminary one based on an application by the employer that the Board should decline to hear the grievances on the basis of issue estoppel and B iudicata.. The Board denied the motion and was prepared to hear evidence with respect to the comparators. I. 164 A similar issue arose in Denapoli/Munroe -I 24.1/84, 273/87 (Fisher). At p.1 of the latter case, the Board noted that: Factually speaking this case is similar to a previous decision by the same panel entitled Laycock (0241/84). In fact it is the Employer's contention that this case is so similar to Laycock that the same decision should be reached, namely the grievance should be dismissed. The Union admits that a certain portion of the Grievor's job, namely the processing of claims is so similar to the task performed in Laycock that that aspect of the Grievor's job is properly classified. However the Union contends that due to the fact that a significant portion of the Grievor's job entails direct dealing with the public, that this factor alone takes the Grievor's job d,uties out of the Clerk General 3 classification and more properly puts her into the Clerk General 4 classification. In Georoes 1439/90 (Wattersl, the Board, in dealing with the usage case, stated at p.32: "The prevailing jurisprudence suggests a comparison to a single employee in a higher classification is sufficient unless it can be established that such employee is wrongly classified," reference being made to.the conclusion of the Board in Bahl -* at p.11. In ~Georaes, the Board stated at p.33 that: The Employer in this case did not allege that [the usage witness1 was improperly classified at the material time. We conclude therefore, that 'the Union is entitled to restrict its comparison to Ms. Gagnon, even though she was a recent hire. The fact of her being a relatively new employee is not, in our judgment, determinative with respect ,to the issue before us. The length of her tenure, and the breadth of,,her experience, is~ simply part of the larger question, this being whether she and Ms. Georges perform work which is ,subrrtantially similar in nature. At p.34 of the Georges case, the Board concluded that: 165 , . . overlap cannot defeat a usage based claim if it renders the jobs substantially similar. TO hold otherwise, would serve to undermine the very foundation of the usage test as recognized by this Board. Tn the final analysis, despite the existence of an area of permissible overlap, the ,Board must still determine if the work performed by the two (2)~ employees is substantially similar. If the answer to this question is in the affirmative, it does not then matter that the class standards contemplate certain tasks as being common to the two (2) classifications. In the G%~~EE case the usage witness (at p.34) acknowledged that she performed virtually all the duties listed in the grievor's position specification and. the Board concluded, at p.35, that it was "simply unable to find that a qualitative difference exists in the way the grievor and [the usage witness1 perform these duties:" In,referring to the areas of "policy development and budget preparation" performed by .the grievor .and the usage witness,,the Board concluded, at p.35, that it~had not been persuaded: "that the type of policy development undertaken by Ithe usage witness1 is of a more complex or sophisticated nature.” And, at p;36: "Further, we have been left with the impression that neither employee is autonomous in matters of policy." The Board reached identical conclusions with respect to the other significant duties and responsibilities carried out by the grievor and the usage witness. Although the Board noted certain differences between the grievor and the usage witness, it stated, at p.39, that it was "unable to find that the differences referred to above relating to collection development and evaluation support a conclusion that the 166 work of the two (2) employees substantially dissimilar. To the contrary, we have been persuaded that their work is substantially similar. It, therefore, follows that the Union's claim, premised on the usage test, must succeed." In conclusion, the Board stated, at p.39: . . . Finally, it should be clear that the result in this case is not based on the content of the class standards. Rather, the Board has compared the duties of the employees and has found them to be substantia'lly similar. This, pursuant' to the jurisprudence of th!e Grievance Settlement Board, supports the reclassification sought. Given that our decision is founded on the distinct facts of this case, our ultimate conclusion is inecessarily limited to the work performed by Ms. Georges and Ms, Gagnon. We have concluded that we have the right to examine previous cases, such as Wallace and Jackson to see whether [there is a sufficient elucidation of the duties and responsibilities of Messrs. Wallace and Jackson and the usage witnesses in that case to see whether the duties and responsibilities of the Grievprs in the I case before us are reasonably similar so as to support the same I finding. ! Discussion I "Classification Disputes at Arbitration" / / I 1. Because of the ~extraordinary length of time that was taken up in presenting this case and because of the cons~iderabli efforts of counsel to canvass every potential aspect of the several issues / , t i 167 that were put before the Board, we believe that our final decision must be placed in a certain perspective. We were greatly assisted > by the article of Paula Knopf, "Classification Disputes at Arbitration" which is found in The Labour Arbitration Yearbook 1993 edited by William Kaplan, Jeffrey Sack, Q.C. and Morley Gunderson. In her article, Ms. Knopf indicated that her purpose was to convince labour and management to stop referring classification cases to arbitration because no matter what result was reached, both parties would lose. She identified why classification grievances are brought: because they determine compensation and status. Ms. Knopf's discussion of the legal principles which are applied by arbitrators in the determination of classification .disputes are in keeping with those here described. She noted that, with few exceptions, classification grievances are not frivolous and, as in.the case before us, are usually filed by the best, brightest and most productive employees. ,This is where the problems identified by her begin: For management to win at arbitration, it must "attack" the employee, and for the union to win, it must "attack" the employer. Yet, at the end of the day, both parties, who must continue to work together, will have lost no matter who has "won." 2. Ms. Knopf identifies a general problem of classification cases 'that clearly applies in the~public service. She notes, at p.81, that: . . . too often, classification cases come forward based on classifications that were drafted 20 years ago when m- c ( ( 168 systems, technology and environments in the workplace were quite different than are currently being experienced. Thus, it seems obvious that one easy way to avoi'd classification disputes would be to', keep classification systems current and up-to-date. ~Given that the designation of classifications is often solely within the discretion of management, .this can be done relatively easily. It is in management's long-term best interest to ensure that the system is kept timely and current. She notes, at p.82, that where the purpose behind., the grievance is to achieve a higher wage rate, as appears to be the case here, there is a responsibility on both the union and the employer to ensure that the classification is receiving an appropriate wage rate in the hierarchical structure of the collective agreement. Because this is a joint responsibility, it should be addressed in negotiations over the renewal of collective agreements. "Classification disputes are not and should never become indirect interest arbitrations regarding one set of. job functions within an entire wage structure. Thus, if the classification grievance really means that the employees are to be ,satisfied with their wage level, the proper forum for such redress is at the bargaining table, not before a board of arbitration." At p.79 Ms. Knopf states: 1.. by virtue~of their personal skills, long experience in a job and ability to adapt to evolving needs of an. employer, these employees find themselves undertaking greater responsibilities, more complex tasks and a greater variety of tasks to the employer's benefit. Clearly, they will not win a classification case if they have undertaken these greater levels of responsibilities without the employer's authority and consent. But in cases where the expanded nature of the work is condoned by the employer as the organization has evolved over (.~ - c ! .I 169 time, the purpose of the grievance will be to seek recognition for the employees' contribution. , An important point made by Ms. Knopf (at p.83) relates to the frequently considerable periods of time taken up in establishing the duties 'and responsibilities of the position. Before the Grievance Settlement Board, this is now usually accomplished through the exchange of the position statements of the parties pursuant to the directive of the Chairperson. In this case, there was no exchange. At p.83, Ms. Knopf states: To be quite blunt, there is no excuse for any factual disagreement as,to what the job is. Surely the parties should be able to agree on this. To facilitate such an agreement, there should be full disclosure by both sides prior to the hearing as to what they consider the nature of the job to be and what aspects of the job the union claims take it beyond the classification. Similarly, the employer should disclose to the union the position the employer will be taking in response to the union's assertions. The evidence need focus only on the particular areas of conflict. . . . It will also go a long way to assisting the arbitration board in understanding what the job is really about. Properly presented, a classification case should take an arbitrator only one day to hear. The parties should be able to present to the arbitrator a straightforward presentation of the nature of the job and the classification system. There should be a focus upon the areas of disagreement as to the nature of the job duties and responsibilities that take the job beyond the confines of the classification. Only then is the arbitrator truly able to make a determination of what work is actually being done and apply the standards and the classification. This depersonalizes the classification grievance process and ensures that the arbitrator will be applying a classification scheme rather than assessing or evaluating the personalities involved. c; ! 170 Depersonalizing the classification grievance is important because of the "dil,emma and irony of job classification casesU identified by Ms. Knopf at pp.79-80: Herein lies the dilemma and the irony of job classification cases. Employers can defend such cases only by cross-examining the grievers and eliciting evidence to establish that the grievers' work is not as complex as the grievers perceive it to be, as important as they believe, as independent as they have assumed, or as valuable or unique a" asset as they assert. Thus, the arbitration hearing becomes a stage of conflict where the value and the quality of work being done by a" employee or group of employees must be challenged. But these are often the very people whom the employer ~would otherwise "ever have had reason to attack. The result is that a" employee whose work has been valued.and relied upon by the employer finds him or herself at a" arbitration hearing having to hear the employer's counsel argue that the employee's work is not as complex as has been asserted or as highly skilled as the employee believes. All too often, cross-examination of employees in these cases mirrors the type of cross-examination one would expect to find in a discipline case involving a" employee's competence. Grievers find themselves being skilfully cross-examined by employers' counsel who disagree with how the job has been described and who try to diminish the importance of the work being done. Conversely, cross-examination of a" employer becomes a" attack by union counsel on the supervisory skills and knowledge of the employer and a" attempt to embarrass supervisory staff in front. of their staff and upper management. Sadly, the result of this conflict is that no one wins classification cases. Even though a" arbitrator will give a bottom line that "the grievance fails" or "the grievance succeeds", and one side may "win the battle", the fact is that the war fought at the arbitration table .results in both sides doing irreparable harm to each other. Otherwise valued and respected employees will have to withstand cross-examination and hear submissions that essentially belittle their role in the employer's organisation. Similarly, the nature of the employer's supervision and delegation of authority will have been criticised by the union. Usually, it will be upper management who will be opposing 'the grievance. But it is the direct supervisors of the grievers and the grievers who have been pitted against each other at the arbitration by their respective counsel. What might have 171 been an harmonious or viable working relationship prior to the arbitration is intolerably strained by such proceedings. All this has serious.repercussions in the long run;~ The way these cases are handled and resolved can act as a serious inhibition of innovation and the attempt to achieve excellence in a job. The best employees are the ones who strive to excel and improve their work methods~ and skills. Why'should they bother trying if their efforts wills be met by an employer belittling their accomplishments and devaluing their work at an arbitration hearing? Employees, as human beings, have difficulty appreciating that the arbitration board is called upon to evaluate their jobs, not the employees themselves. Because all of us tend to find personal value and identity in our jobs, it is very difficult for any person not to feel insulted when the value of his or her work is challenged or not respected or acknowledged by others. How can an employee go back to his or her job with any enthusiasm or positive 'motivation after withstanding a cross-examination in a classification case and/or receiving a negative award from an arbitrator? Even where there is agreement that a position specification accurately states the duties and responsibilities of a grievor, much time is frequently taken up in.having the grievor, who has agreed to the statements with respect to the duties and responsibilities as set-out, then go over most of the items recorded after each "bullet point" by way of "explanation." What usually follows is lengthy evidence from the employer's witnesses with respect to the accuracy of the "explanation." The arbitration of classification cases has taken up a considerable amount of the Board's time and resources. We believe that the parties may obtain muc'h useful guidance from an examination :of Ms. Knopf's article, especially the portions 172 entitled "Alternatives to Arbitration" and "Improving the Arbitration Process." We would add that in "pointing out that there are much better ways of resolving classification disputes than proceeding to arbitration" (at p.84), Ms. Knopf does not ignore the fact that (ibid - 1 that arbitrators can resolve classification disputes "with professionalism and dignity by ensuring that [they] understand the classification system that the parties work under and by ensuring that, .to the greatest degree possible, we understand the job duties being performed." And that "[arbitrators1 can give the parties .a fair hearing and provide them with an award that reflects that [they] have understood what [they] have been told, and that [they] appreciate the nature of the work that is being done." Her suggestions, while not an attempt to undermine the adequacy of arbitrators, attempts to.point out a better way. T,he Relationship Between "Social Work" and "Vocational Rehabilitation Counselling" 1. Fundamental to the Grievers' class standards and usage arguments is an understanding of the meaning of social work, and related terminology, in the SW2 classification. 173 2. From the evidence presented by the Uni.on witnesses, including that contained in Exhibit 33 entitled --ofor Vocati nal an < R c e t'onal i,atri w and in Exhibit 27 ,entitled Rehabilitation Counselling Trainina Manual, being a document prepared by one of thee Grievors, P. McKenna for the Rehabilitation Services Department of the Hamilton Psychiatric Hospital, it is evident that vocational rehabilitation counselling is an identifiable discipline with training courses being provided at the community college diploma level, and at the Bachelors, Masters and Ph.D. level at universities, primarily in the United States. 3. Exhibit 3.3 is a 1976 revision of a previous manual issued by the Mental Health division of the Ontario Department of Health for the establishment and operation of vocational and recreational services in the Ontario Psychiatric Hospitals, "its purpose being to outline the organisation of a department in an Ontario hospital to be responsible for the full range ,of authorized therapeutic activities for patients." 4. The evidence of Dr. Wattie was accepted by us based on her education and experience in the field of social work. Although she has not performed clinical social work since 1974, she had extensive experience in both the practical and theoretical aspects of social, work and knows what it is. The fact that she is unfamiliar with vocational rehabilitation counselling,' in the sense i ( \. 174 that she has never performed that kind of work, does not undermine her evidence. She did not regard vocational rehabilitation counselling as being part of professional social work, and this is consistent with the way in which personswho wish to enter the latter field obtain formal accreditation. From an educational standpoint, persons who wish to become professional social workers will usually attempt to gain admission to a school of social work. Persons wishing to become professional rehabilitation counsellors would become aware that professional training in that discipline is given in faculties~ devoted to such training. Given the credentialism policy of the Employer, it would be possible for-a person. to operate at the professional level of a social worker without obtaining a formal degree. However there would have to be significant cogent evidence that the kinds of skills and knowledge associated with training furnished at' professional schools of social work had been acquired in some other fashion. 5. There was no substantial evidence to show that'the Grievers acquired professional social work skills so as to be able to assess whether they were carrying out duties and responsibilities that fall within the SW2 classification. 6. We-wish to make it clear that the Grievors demonstrated that they are skilled practitioners of vocational rehabilitation counselling. We make no judgment as to whether their skills and abilities in carrying out their duties and responsibilities are 175 less onerous and intellectually demanding than those required of a person properly classified as sW2. On the evidence before us, we i must conclude that vocational rehabilitation counselling is distinguished from professional social work. 7. The issues presented to us are particularly difficult of resolution because social workers may be found in a variety of areas. In fact, the evidence disclosed that persons holding degrees in social work worked in vocational rehabilitation counselling at COMSOC. Merely because a person holding certain professional qualifications occupies a particuIar position does nqt necessarily mean that they are operating at a professional level in the discipline with respect to which they hold qualifications A lawyer, being a member of the bar and entitled to practice law in a particular jurisdiction, may be working in industry in a capacity which either does not require him/her to function at a professional level or only to a minor extent, so that it cannot be said that he/she is providing professional legal services commensurate with their professional designation. Similarly, a person holding a Professional Engineer's qualification may function in many positions without having to provide professional engineering services to an extent where it could be said that they are functioning in their professional engineering capacity. This does not make their work any less demanding or complex. It merely indicates that they are not functioning at a professional level associated with their discipline. (..I ‘> ,7 L .’ 176 1n the case of trained professional social workers, where they. function in a discipline that has been differentiated by i5.s own leading practitioners from professional social work, a~nd where they, by their own admission, are not required to and do not significantly draw on their professional social work training in carrying out their duties and responsibilities, they cannot be said to function as professional social workers, although they may be functioning as professional vocational rehabilitation counsellors etc. 8. There may be cases where the significant core duties and responsibilities of persons employed as professional vocational rehabilitation counsellors involve other than vocational rehabilitation goals as a primary focus. In those circumstances, it might be possible to say that they are providing professional social work services in the manner set out in the SW2 class standard. On the evidence presented, none of the usage witnesses agreed with suggestions that they were using the kinds of skills and abilities called for under then SW2 class standard in any significant way, but were adamant that they were using those skills and abilities directed at achieving the ends which are the primary focus of vocational rehabilitation counselling. 9. It was evident that the Grievers take great pride in the work they do, have an extraordinary dedication to the goals of vocational rehabilitation counselling and shave engaged in numerous 177 efforts to improve their qualifications so as to be able to better deliver vocational rehabilitation services to their clients. The I. Employer is indeed fortunate to have such a dedicated and devoted group of employees. 10. Because of our conclusion with respect to the difference between professional social work and vocational rehabilitation counselling, it would not be possible for the Grievers to rely on the Social Work 2 class standard as a basis for reclassification. Discussion With Respect to the R02 Class Standard 1. Although by no means a perfect fit, the class definition for Rehabilitation Officer 2 furnishes a reasonable fit for the duties and responsibilities of the Grievers. Their supervision is on the outer limits of general supervision and they do furnish "a complete range of industrial rehabilitation services to prepare patients, out-patients or ex-patients at a psychiatric hospital . . . for re- employment within the community." Although they have a considerable degree of independence, they do not operate entirely alone and we would conclude that they function: "in conjunction with other hospital staff" to: "review the medical, educational and work background of individual cases; appraise attitudes; discuss tentative programs with clinical staff , 178 and decide on a realistic individual vocational rehabilitation program." There was also evidence that: "They collaborate and 2 maintain liaison with other provincial and federal agencies in matters such as: vocational or on-the-job training and maintenance allowance; job placements and they provide follow-up counselling and obtain assistance from community agencies as required. They also promote public understanding and acceptance of the mentally ill or retarded." 2. The evidence also disclosed that: "These employees may assist in obtaining contracts for industrial therapy workshops and may participate in their operation. They may supervise and instruct rehabilitation officer trainees and clerical staff. They prepare reports and qualifications asrequired and perform related duties as assigned." 3. The Grievors may operate (at the date of the grievances in 1987 and 1988) at the upper limit'of the R02 classification but, nevertheless, they did then fit within it. I 4. There was considerable evidence demonstrating how the Grievor-s had continued to increase their knowledge base and to incorporate their increased knowledge into their functioning, with the apparent approval of their supervisors. There were many examples given in ,individual cases, such as the incorporation of the Anthony model of vocational rehabilitation. Although the evidence did not disclose I-. !: i (I: 179 that the full Anthony model was being incorporated, it was also evident that the Grievors, in a variety of ways, operated at a , fairly sophisticated level. We'are bound to consider.the matter as at the date of the filing of the grievances in 1987 and 1988, and cannot comment on what our decision would be based on such changes as have occurred since that time. However, on the basis of the evidence that was properly before us, we must deny the claim based on the standards argument for the reasons set out above. Discussion With Resuect to the Usage Arguments Concernina Wal.1ac.e an- 1. owe are satisfied that the Grievors were performing substantially the same duties and responsibilities as Messrs. Wallace and Jackson and the usage witnesses referred to in WaL&x and Jackson. The evidence of the usage witnesses in the Wallace a-Jackson case indicated that they were functioning as vocational rehabilitation counsellors and were not, in any signkficant manner, called.upon to employ the duties and responsibilities associated with the provision of professional social work services as set out in the SW~ class standard. While the duties and responsibilities of the Grievers in Wallace. and Jackson and the usage witnesses in that case may not have been identical to those of the Grievers. they were substantially.the same. 180 2. There was no evidence to demonstrate that the Employer had ever taken steps to correct what it regarded as a mistake in the classification of the usage witnesses in Wallace and Jackson: all of whom regarded themselves as functioning as vocational rehabilitation counsellors without having to draw on the skills and knowledge associated with the practice of professional social work. 3. We find no significance in the fact 'that we are acting on the factual findings of the Board in Wallace and Jackson and this has been done by other panels of the Board in othe,r cases as above noted. 4. It was of. some significance in Wallace and Jackson that Mrs. Gander', a usage witness in that case, had worked with the grievers Wallace and Jackson when classified as an R02 at Kingston Psychiatric Hospital, and was familiar with, what they did and, certainly was familiar with what she did. She testified that on the basis of her experience and understanding of both what Wallace and Jackson did, and of her then present and previous positions, they all did the same thing in the same way. That it, they functioned as vocational rehabilitation counsellors and :not as professional social workers and had essentially the same duties and responsibilities. 5. AS is evident from some of the cases canvased,above, it is not unknown for the Employer to classify persons who were found by the Board not to fall within the social work classification as socia1 workers. z Discussion of the Llsaae Araument - Messrs. Haines and Rooers 1. Similarly to the usage witnesses in W 11 c a, Messrs. Haines' and Rogers' evidence was consistent with their functioning as vocational rehabilitation counsellors, performing the duties and responsibilities associated with that classification and not as persons providing professional social work services. Any compiling of social histories and formulation of psychosocial diagnoses of .the personal and environmental causes of social dysfunctioning and the implementation of treatment plans to assist clients to resolve their problems and ,to develop their ,maximum potential were not. being carried out using the'skills and knowledge employed in providing professional social works services. In this sense they were reasonably similar to the Grievors. They were all functioning within the area of a discipline other than professional social work; they were all functioning as vocational rehabilitation counsellors. 2. The duties and responsibilities of Messrs. Haines and Rogers might not have been identical to those of the Grievors, but they. represented a sufficiently reasonable approximation so as to make differentiation a hair-splitting task. 181 182 3. On the totality of the evidence we do not' find that Mr. Haines spent the substantial ,amount of time attributed by him to eligibility and when his' evidence is closely examined he is 'doing essentially the same work as the, Grievor-s. In any event, the evidence of the other usage comparators did not disclose such a. heavy involvement in the eligibility function. 4. As in the case of Ms.Ssegal, in Wallace and Jackson, Mr. Haines in the instant case, who had professional social work credentials, did not regard himself as utilizing his education and experience as a social worker in carrying out his vocational rehabilitation duties and responsibilities in any significant manner. 5. We do not find the fact that Mr. Rogers was .,"grandfathered" to be significant. It was open to the Employer to refuse to do so based on his actual duties and responsibilities. There was no evidence that the Employer had classified any of the usage witnesses by mistake and was taking steps to remedy its error. 6. Such differences.as existed in the kind of supervision of Messrs. Rogers and Haines and the,Grievors were not sufficiently significant so as to cause .us to alter our view of the matter. All of them had significant independence in carrying out their duties and responsibilities, and there was no evidence of any significant intervention by their supervisors, who were content to rely on c : c 183 their subordinates' judgment in carrying out their duties and responsibilities. In some areas, the Grievers had less superyision than Messrs. Rogers and Haines in the area of approving their assessment of eligibility. Such differences as existed were insufficiently significant. The Grievers' involvement with hospital staff, while significant, also disclosed that they were the vocational rehabilitation experts and were accorded a large degree of autonomy. Their involving the various clinical teams was more as a means of furnishing information as .to the vocational rehabilitation component of a patient's treatment than as a means of reducing the autonomy of the Grievers. 7. Accordingly, we find that the Grievers also succeed on the usage argument relating to the usage witnesses Rogers and Haines. 8. On the basis of the Board's jurisprudence we do not find that there is any significance in the number of usage witnesses that might alter our view of the usage argument. Counsel for the Union submitted that given the Board's award in Wallac e on, this was a case for departing from the "usual 20 day rule," according to the rationale in Hillman, 2007/89 184 (Kaplan), a decision of the Board dated November 22, 1990. Counsel submitted that the Employer had been put on notice on Aprl,l 29, 1987, being the date of the We decision;. that R02's working in psychiatric hospitals in Ontario were wrongly classified, and should be properly classified as SW2. It was added that there was no prejudice,~to the Employer, and it would be "grossly unfair" if the Employer was given the benefit of the Grievers "at a cut-rate cost." Submissions of the Emulover as to Retroactivitv Counsel .for the Employer submitted that there was no reason to depart from the usual rule that retroactivity would be limited to 20 days prior to the date upon which the grievance was actually filed. Counsel stated that: "In the classification cases in which the Board has extended the'retroactivity, there has been conduct by the employer which led the employees to believe that it would not be necessary to file a grievance. There is no allegation and no evidence of such conduct in this case." Discussion With Respect to Retroactivitv 1. In Hillman, the Board held.that there were other ways for an employer to be put on notice that a claim for reclassification would be forthcoming. 185 2. In Hillman,, the grievor had worked as a senior construction technician since 1980 in the Ministry of Transpo.rtation's Nqrthern Region. In January of 1990, he learned from another employee that a decision of the Board, referred to as the Tm decision (93/88), had been issued. In Truchon, some 35 senior construction technicians in the Ministry's Northern Region sought reclassification. The Board found the Truchon grievers to be improperly classified and granted a Berrv order requiring the employer to properly classify them. 3., In E.illma~, at pp.6-9, the Board noted the position of counsel' for the union that the employer had been effectively been put on notice by the. filing of the Truchon grievance, and that senior construction technicians in the northern region considered themselves to be improperly classified. The Board also noted that while the grievor in Hillman did not personally bring his complaint to the attention of management, that complaint had been formally brought to management's attention by the filing of the various Truchon grievances. The Board noted that this was not a case where the employer could say that it was caught unaware of the. complaint and to extend retroactivity to the grievor would not create any unfairness to the employer. 4. In allowing the grievance, the Board in Hillman stated at pp.ll-12: . . . we are of the view that there are circumstances in this case which would make it inequitable~ tom limit 186 retroactivity to 20 days. . . . we reach this result based on our finding that this is one case where it would be equitable to extend the period of retroactivity beyond the 20-day period generally awarded in classification cases. 5. At p.12, the Board stated: We find support for this result based on the line of cases which have held that where the employer has been put, on notice of the complaint prior to an actual grievance being filed, the period of retroactivity may be extended where circumstances warrant. In this case, the employer was put on notice by the filing of the Truchon grievances. 6. In the case before us the Unionargued that the Employer was put on notice by the rendering of the decision in Walla'ce and Jackson. 7. The Board in ~Hillman also noted at p.12: It can hardly be said that the Ministry was taken unaware by the instant grievance. It knew that the classification of senior construction technicians in the northern region had been brought into issue, and it knew that should those classifications be found wanting that u senior construction technician would have to be reclassified. It would defy logic, common sense and fairness to deny the grievance i.n this case for to do so would mean that some senior construction technicians would receive reclassification, and presumably better compensation, for their work, while their fellow employees, performing exactly the same duties at exactly the same time would not receive reclassification and compensation for the period in question. a. We cannot find any significant difference between the reasoning in the Hillman case and in the case before us so as to deny retroactivity to the Grievers from the date of the release of Wallace and Jacks- being April 29, 19B7. 187 Decision , Accordingly, and for the above reasons, we order that the Grievers be' reclassified to Social Worker 2 with retroactivity to April 29, 198 Dat d at Toronto this 5th day of August, 1993. M. Go_rsky - Vice Chayrpersbn A. Stapleton /'Member .” I-- / :LISS STAJDARD: t: APPENDIX 1 ! \ 10102-04 This class series covers positions in the field of.socid welfare w&h involve the provision of professional social tmrk services in provincial ‘. programs of social development, adjusuwlt, prevention and rehabilitation: These direct services assist individuals, families, groups, and comaunities to achieve and&&ntain effective personal development a$social functioning, satisfying inter-relationships and a better social order. Eznployees use one or more social work methods to assess, treat or prevent the underlying . muses of social dysfunctloning, both personsl and environmental. They develop and dn$lenent appropriate social treatment plans and evaluate results. Social work services are given in a variety of cosusuni ty and institutional settings. SOCIAL WORKER smm socm w@KER 1: The entry level for recruits with minimm qualifications and no experience. SKIU WoRKm 2: The full working level for qualified social workers. July 4. 1971 . SOCIAL bmm4 1 . This class covers entry level positions of social workerr,uho are gaining casework experience following comple.tion of undergraduate professional education. bployees receive instruction on departmen+al programs and policies from a senior social vorker who assigns and supervises work. Under close supervision, they conduct interviews, compile case histories, assess problems, and recommend supportive.treatment. They provide counselling and utilize appropriate comnunity resources to meet clients’ needs. In all ’ positions at this level, assigmnents are selected to provide scope for the devel opncn t of competence. Senior social workers provide professional -uidmce and review social treatient decisions. ._) WOWl.ISKE AND SKILLS WQUIRlZD: Good knowledge of the principles, techniques and methods of social work and ability to apply them in the work situation; general lmowledge of departmental programs and policies; personal suitability. Revised. luly 4, 191 Y , (1:: . 10104 CLASS STANDARD: This class covers the positions of quslified social Vorkers vho provide professional social work services to clients under the general supervision of a senior social worker or other professional or administrative official. They conduct interviews, compile socia histories and formailate diagtosis of the~personal and environmental causes of social pSyCbsoc~ I dysfuuctioning. They implement~treatment plans to assist clients to resolve their problems and rievelop their marirman potential. They provide service by any one or i a combination of the social work methods appropriate ta the functions of the deparunent and servfce. They evaluate the effectiveness of the treatment plan and modify or revise as necessary. They consult with members of other professional disciplines and may serve as members of treatment teams, inst:.tutional and comaunity comittees. They may supervise and review the work of social vorkassistants, child care workers, residential counsellors and other staff ti the area. They participate in conferences and group discussions, interpret departmental policy and objectives, and maintain liaison vith other disciplines, jurisdictions, and cosanuui ty agencies. They may bassist in the training of departmental personnel and students in social service Courses. KNOWLEDCE AND SKILLS REQUIRED: Thorough lmowledge of the principles, techniques, and methods of social work and ability t&apply them in t&e work situation; ability to fozmlate psychoqocial diagnoses and skill in implementing than; knowledge of diagnostic and treatment procedures utilised by related disciplines; good knovledge of departmental plpgrams and policies; ability to develop co-operative working relationships vitb other professional staff; personal suitability. Revised, luly 4. 1971. ,(. APPENDIX z . - (" ~li4RXLITATIO~iOFFICER 1, HEALTH e3 7 CLASS DEFINITION: This class covers positions of employees under training in industrial rehabilitation work in a psychiatric hospital or mental retardation facility. Under supervision,'they perform any or all the duties of.a Rehabilitation Officer 2, Health and receive on-the-job instruction in the techniques and procedures involved in effecting the se-employment of persons who have been mentally ill or are mentally retard.ed. QUALIFICATIONS: 1. Grade 12 education: preferably a.degree in one of the social sciences from a university of recognised stallding. 2. Preferably some prior, related work experience. 3. Mental maturity: a genuine interest in and ability to work with the mentally disordered or retarded and ex-patients; ability to communicate effectively with hospital staff, patients, employers and the public; patience; tact: sound judgement: personal suitability. Hcviscd Jinuary 1969 T.C. Jul./ 1, 1972 (. C 10204 RE&BILITATION OFFICER 2, HEALTE . CLASS DEFINITION: Under general supervision, employees in positions.in this class use a complete range of industrial rehabilitation services to prepare patients, out-patientsor ex-patients ‘at a psychiatric hospital or mental retardation facility, for r&employment within the community. , In conjunction with other hospital staff, these employees review the medical, educational and work background of individual cases; appraise aptitudes: discuss tentative programmes with clinical staff and decide on a realistic individual vocational rehabilitation programme. They collaborate and maintain liaison with other provincial and'federal agencies in matters such as: vocational or on-the-job training and maintenance allowance: job placements and they provide follow-up counselling and obtain assistance from community agencies as required. They.also promote public understanding and acceptance of the mentally ill or retarded. These employees may assist in obtaining contracts for industrial therapy workshops and ma participate in their operation. They may supervise and 1 nsttuct Rehabilitation Officer trainees and clerical staff. ,The prepare reports and - correspondence as required and'perform related duties as assigned. QXUIFICATIONS: 1. Grade 12 education; preferably a degree in one of the social sciences from a university of recognized standing. 2. At least one year's experience in rehabilitation work in the Ministry of Health, or directly related experience acceptable to the Civil Service Commission as the equivalent. 3. Ability to work effectively with the mentally disordered or retarded and with ex-patients; ability to communicate effectively with employers and'the public: tact: sound judgement; patience. - Revised January 1969 T.C. JuI Y 1, 1972